I hereby certify that a true and correct copy of the forgoing Petition for Writ of Mandamus was furnished by United States Mail, postage paid, this 26th Day of August to: Robert W. Fairchild, Respondent 111 East 11th Street Lawrence, KS 66044 James McCabria, Respondent 111 East 11th Street Lawrence, KS 66044 James T. George, Respondent 111 East 11th Street Lawrence, KS 66044 Sally Pokorny, Respondent 111 East 11th Street Lawrence, KS 66044 B. Kay Huff, Respondent 111 East 11th Street Lawrence, KS 66044 Douglas Hamilton, Other Party 111 East 11th Street Lawrence, KS 66044 Peggy Kittel, Respondent 111 East 11th Street Lawrence, KS 66044 Jameson Shew, Other Party 1100 Massachusetts Street Lawrence, KS 66044 Paula B. Martin, Respondent 111 East 11th Street Lawrence, KS 66044 Kris Kobach, Other Party Memorial Hall, 1st Floor 120 SW 10th Avenue Topeka, KS 66612 Steven Davis Pro se litigant
No. Petitioner,, vs. Respondents. Relating to In the Matter of the Petition to Summon a Grand Jury Filed by Steven Davis District Court of Douglas County Case No. 2016-MR-35 _ Steven Davis Pro se litigant 2449 W 24th Ter Apt 3 Lawrence, KS 66047 (913) 683-3719 stevenxdavis@yahoo.com Petitioner
1 Statement of Relief Sought Petitioner Steven Davis, pro se pursuant to Kansas Supreme Court Rule 9.01(a), and respectfully requests this honorable Court grant this petition for writ of mandamus and direct the judges of the district court of Douglas County to issue an order summoning a grand jury in the county to investigate alleged violations of law and to perform such other duties as may be authorized by law, and in support thereof states the following: Issues Presented 1. Whether the district court erred in determining that the Petitioner s Petition to Summon a Grand Jury was not in the proper form; 2. Whether the district court s duty to summon a grand jury is mandatory provided the Petition is in the proper form and bears the signatures of the required number of electors; and 3. Whether this Court should direct the judges of the district court to issue an order to summon a grand jury. Reason for Initiating Original Action The Kansas Supreme Court has original jurisdiction in all mandamus proceedings as granted by Section 3 of Article 3 of the Kansas Constitution, and said jurisdiction is concurrent with the district court pursuant to K.S.A. 60-801 et seq. Because all of the judges of the district court are named as Respondents, the Petitioner is unable to seek adequate and impartial relief in the same court and must therefore initiate an original action with this Court directly.
2 Reasons for Requesting a Writ of Mandamus As the person who filed the petition to summon a grand jury, the Petitioner has a critical role in the grand jury proceedings that cannot be assumed by any other individual. K.S.A 2015 Supp. 20-3001, as amended by L. 2016, ch. 87, sec. 3; K.S.A. 2015 Supp. 20-3006, 20-3008. The Petitioner therefore has a specific interest in this matter and is uniquely and peculiarly injured by the district court s failure to perform its public duty to summon the grand jury. Furthermore, there is no plain and adequate remedy set forth in Kansas law or precedent with respect to orders to summon grand juries, therefore the Petitioner is seeking an extraordinary remedy. Facts Necessary to Understand the Issues Presented In May 2016, Petitioner Steven Davis ( Davis ) began circulating the Petition to Summon a Grand Jury ( Petition ), a true and correct copy of which is attached as Exhibit A. The Petition alleged that Kansas Secretary of State Kris Kobach ( Kobach ), his subordinates, employees, or independent contractors carrying out duties related to the management of voter registration data committed the crimes of election fraud by an election officer and voter registration suppression, as defined by K.S.A. 25-2420 and 25-2421a respectively. On July 27, 2016, Davis filed the Petition with the office of the Clerk of the District Court of Douglas County ( Clerk ) in accordance with the procedure outlined in K.S.A 2015 Supp. 20-3001, as amended by L. 2016, ch. 87, sec. 3 ( the grand jury statute ). The case was assigned the name In the Matter of the Petition to Summon a Grand Jury Filed by Steven Davis and the case number 2016-MR-35.
3 Also on July 27, 2016, the Clerk transmitted the Petition to Jameson Shew, the Douglas County Election Officer ( Shew ). On August 4, 2016, Shew returned the Petition to the Clerk along with an affidavit certifying the number of qualified electors of the county whose signatures appear on the petition and the aggregate number of votes cast for all candidates for governor in the county in the last preceding election ( Affidavit ), a true and correct copy of which is attached as Exhibit B. The Affidavit certified that the Petition bore the signatures of 925 qualified electors of Douglas County and the aggregate number of votes cast for all candidates for governor in 2014 was 37,989. Because the requirement set out in the grand jury statute for the number of signatures is 100 + 2% of the turnout in the most recent gubernatorial election, Shew stated that the threshold was 860 signatures and suggested that the petition be considered valid based on these figures. On August 18, 2016, Respondent Robert W. Fairchild, Chief Judge of the District Court of Douglas County ( Fairchild ) issued, on behalf of the judges of the District Court of Douglas County ( Judges ), an Order Dismissing Petition ( Order ), a true and correct copy of which is attached as Exhibit C. Fairchild concluded in the Order that the petition was not in the proper form because it lacked allegations of specific facts which, if true, would warrant a true bill of indictment.
4 Memorandum of Points The grand jury statute outlines two duties for the Judges in section (c)(3), reproduced here: The judge or judges of the district court of the county shall then consider the petition and, if it is found that the petition is in proper form and bears the signatures of the required number of electors, a grand jury shall be ordered to be summoned. Although Fairchild states that a majority of the Judges reviewed the Petition, the Order bears only his signature, so in the absence of an explicit identification of which Judges participated in the review, the Petitioner has severally named all of the Judges as Respondents. Fairchild s Order states that the Judges fulfilled their duty to consider the petition and determined, based on their consideration, that they were not obligated to fulfill the second duty. The Petitioner argues that the Judges determination is in error and does not absolve them of their duty to summon the grand jury in accordance with the law. 1. The Respondents erred in determining that the Petition was not in the proper form. Because the Judges acknowledge only one deviation from what they consider the proper form of a petition filed in accordance with the grand jury statute, this Memorandum will focus exclusively on that deviation: the nature of the allegations stated on the face of the petition. a. The allegations are not a component of the form of the petition. Section (c)(3) of the grand jury statute states that the Judges consideration must be directed at the form of the petition and the number of signatures thereon; no mention is made of the contents of the petition. In determining what constitutes the proper form, Fairchild cites section (c)(2) of
5 the grand jury statute in his Order, asserting that [t]he petition makes no allegations of specific facts that would warrant a finding that the inquiry might lead to information which, if true, would warrant a true bill of indictment. Without such allegations, the petition is not in proper form This assertion lacks a statutory basis for two reasons: First, the prescription of the form of the petition is contained entirely within section (c)(3), which begins with the phrase The petition shall be in substantially the following form By citing another section, Fairchild is claiming that all the requirements for the petition are requirements of form, which is not clearly exposited in the law. Second, section (c)(3) of the grand jury statute predates section (c)(2) by 41 years, and apart from a few immaterial changes, the language is functionally identical to the original version of the grand jury statute passed in 1970, which suggests that the requirements of (c)(2) are not requirements of form. (L. 1970, ch. 129, sec. 22-3001; L. 1976, ch. 163, sec. 12; L. 1986, ch. 115, sec. 61; L. 2005, ch. 189, sec. 1; L. 2011, ch. 100, sec. 8; L. 2013, ch. 85, sec. 2; L. 2014, ch. 50, sec. 1; L. 2016, ch. 87, sec. 3.) Furthermore, when section (c)(2) was added in 2011, it was added as a separate section above the prescription in section (c)(3). The Kansas Legislature s decision to place these requirements in a separate section is prima facie evidence that the requirements are not related to the form of the petition. After considering the structure and legislative history of the grand jury statute, the Petitioner concludes that the allegations are not a component of the form of the petition.
6 b. General allegations need not refer to specific facts. If the requirements laid out in section (c)(2) of the grand jury statute must indeed be met in order for the petition to be in the proper form, there are still other problems with the Judges determination, in particular, Fairchild s claim that the allegations in the petition are not allegations of specific facts. Section (c)(2) of the grand jury statute states that [t]he petition, upon its face, shall state sufficient general allegations to warrant a finding that such inquiry may lead to information which, if true, would warrant a true bill of indictment. The phrase general allegations does not appear anywhere else in Kansas law, in contrast to the phrases factual allegations, material allegations, or the unqualified allegations, which all appear in multiple statutes. This suggests that kind of general allegations mentioned in the grand jury statute conform to a standard that is unique to the citizen grand jury process. The Petitioner could find only one reference to general allegations in the United States Code, located in the 1994 Rules of the United States Court of Federal Claims and reproduced here: The statements contained therein shall be properly separated and numbered and shall consist of specific statements of material facts which the plaintiff expects to prove as opposed to general allegations of the kind used in pleadings. [Emphasis added.] 28 U.S.C App. (1994), R. Fed. Claims, App. C (2)(D). It is clear from this rule that general allegations and specific statements of material facts are antonymous in the federal court system. In Kansas jurisprudence, general allegations are almost invariably contrasted with facts, notably in Trotter v. Kansas: [Trotter] did set out his general allegations [b]ut he failed to
7 add any facts or an evidentiary basis. 288 Kan. 112, 200 P.3d 1236 (2009) and Littrice v. Kansas: The statements in the affidavit are general allegations without factual support. 30 Kan. App. 2d 800, 48 P.3d 690 (2002). Based on these authorities, the Petitioner concludes that the general allegations stated on the face of the petition need not be allegations of specific facts. c. The allegations are sufficient to satisfy the requirements of the grand jury statute. If the allegations must indeed refer to specific facts, the Judges have still failed to show that the allegations are not sufficient to satisfy the requirements of the grand jury statute. The Petition states on its face the following: The grand jury shall inquire into allegations of election fraud by an election officer and voter registration suppression, as defined by K.S.A. 25-2420 and 25-2421a respectively, by Kansas Secretary of State Kris Kobach and any of his subordinates, employees, or independent contractors carrying out duties related to the management of voter registration data. Specifically, the grand jury will investigate allegations of mismanagement and/or deletion of voter registration data and the obstruction of the delivery of voter registration applications and proof-of-citizenship documentation. Written at length, the allegations are as follows: 1. Kobach or someone in his employ committed election fraud by an election officer. 2. Kobach or someone in his employ committed voter registration suppression. 3. Kobach or someone in his employ mismanaged and/or deleted voter registration data. 4. Kobach or someone in his employ obstructed the delivery of voter registration applications and proof-of-citizenship documentation. Any one of these allegations, if proven factual, would constitute a severity level 10, nonperson
8 felony. K.S.A. 25-2420 and 2421a. Furthermore, any public officers convicted of one of these crimes would forfeit their offices as mandated by K.S.A. 25-2432. Fairchild posits in his Order that these allegations are not allegations of specific facts, which raises the questions of how specific the allegations must be to satisfy the grand jury statute. Indeed, although Section (c)(2) of the grand jury statute states that the identification of areas to be inquired into be reasonably specific, a phrase that will be examined further in the following section, the statute requires only that the allegations be sufficient. In the absence of a clear explanation from the Judges or a clear precedent in Kansas jurisprudence with respect to the specificity or sufficiency of allegations presented in a petition to summon a grand jury, the Petitioner turns to Unger v. Horn, a Kansas Supreme Court decision relating to the substantially similar process of recalling elected officials by petition, the only other form of citizens initiative found in Kansas law. In Unger, the Court examined the allegations in a petition for recall and stated that [a]n allegation in a petition for recall that a public official willfully violated the Kansas Open Meetings Act is a legally sufficient claim of misconduct and may subject the public official to a recall election, and [h]ere, the charge is merely a general allegation that Unger and Temple violated the Open Meetings Act. [Emphasis added.] Unger v. Horn, 240 Kan. 740, 732 P.2d 1275 (1987). According to this authority, the charge that a public official violated a specific statute is a legally sufficient claim of misconduct and constitutes a general allegation, therefore the Petitioner concludes that the allegations stated on the face of the Petition constitute sufficient general allegations as required by section (c)(2) of the grand jury statute.
9 d. The grand jury statute must be liberally construed in favor of the Petitioner. If the Judges argument is taken at face value and it is assumed, despite the evidence to the contrary, that the allegations in the petition do not satisfy the requirements set forth in the grand jury statute, the Judges have still failed to properly exercise their judicial discretion in considering the Petition. Because the grand jury statute relates to the right of citizens to petition their government for a redress of grievances and provides the citizens with further autonomy in the legal process, the Petitioner asserts that the rights granted by the grand jury statute are fundamental. The Petitioner returns to Unger v. Horn, where the Court found that [w]here a state constitutional provision provides for the recall of public officials, recall is viewed as a fundamental right which the people have reserved to themselves. When the power of recall is a fundamental right, statutes governing the exercise of the power are to be liberally construed in favor of the ability to exercise it, and any limitations on that power must be strictly construed. Unger v. Horn, 240 Kan. 740, 732 P.2d 1275 (1987), citing 63A Am.Jur.2d, Public Officers and Employees 190. As opposed to the right of recall, the rights granted by the grand jury statute are judicial rather than political in nature, which suggests those rights are at least as fundamental as the right of recall, and therefore the Petitioner concludes the Judges consideration of the Petition should be liberally construed in favor of the Petitioner. Ultimately, the grand jury statute contains two phrases that allow room for judicial discretion: reasonably specific identification of areas to be inquired into and [t]he petition shall be in
10 substantially the following form. In considering a petition submitted in accordance with this statute, the Judges must therefore determine what is reasonable and what is substantial. Given that reasonable can be defined as agreeable to a reasonable person, the Petition clearly satisfies this condition, as Davis collected the signatures of 924 other qualified electors of Douglas County, at least a few of whom must be considered reasonable. Thus the Judges argument rests on one question: Does the form of Davis s Petition differ from the proper form in a substantial way? In other words, how would the Petition differ if it met the standards set forth in the Order? Assuming for the sake of argument that the Petition contained allegations that were extremely specific, alleging for instance that a specific individual committed a specific crime in a specific place on a specific date, then several questions arise: How would Davis fit the allegations on a single sheet of paper and still have enough room for signatures? How would Davis quickly and adequately explain the specific details to potential signers of the petition, most of whom do not have time or inclination to discuss those details at length? How could Davis make such specific statements without opening himself up to allegations of defamation? And most importantly, how could Davis be expected to attain this level of specificity without the assistance of a fact-finding entity such as a grand jury? If Davis could have provided probable cause for a criminal trial on the face of the Petition, it would have obviated the need for a grand jury to produce evidence that the law had been violated in the first place. Although these differences could be construed as substantial, they are clearly not reasonable. In
11 strictly construing the grand jury statute against the Petitioner, the Judges have failed to exercise reasonable judgment and have abused their discretion in this matter. Finally, on a personal note, the Petitioner acknowledges that Davis is not a member of the bar, has no formal legal training, and cannot readily afford an attorney, which is why he prepared both the Petition and this Petition for Writ of Habeas Corpus without the assistance of counsel. By insisting on a standard of exactitude that could only be met by a professional attorney or legal scholar, the Judges have effectively shut Davis out of a process that should be available to any qualified elector of Douglas County without respect to his or her educational background. 2. Provided the Petitioner s Petition is in proper form and bears the signatures of the required number of electors, the Respondents duty to summon a grand jury is mandatory rather than discretionary. The grand jury statute contains two instances of the word shall in reference to the Judges duty to summon the grand jury, specifically in section (c)(1): A grand jury shall be summoned and (c)(3): a grand jury shall be ordered to be summoned. Although neither provision explicitly states that the district court must be the court to issue the order, the form of the Petition prescribed in section (c)(3) indicates that the qualified electors request that the district court cause a grand jury to be summoned, which strongly suggests that the Judges are responsible for the issuance of the order. With respect to the phrasing of the statute, the Petitioner cites Kansas v. Raschke: The following factors are among those to be considered in determining whether the legislature's use of the word shall makes a particular provision mandatory or directory: (1) legislative history;
12 (2) substantive effect on a party's rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision. 289 Kan. 911, 219 P.3d 481 (2009). The Petitioner argues that the grand jury statute satisfies all four factors: a. The context of the statute indicates a passive role for the judges of the district court. Section (a) of the grand jury statute states that [a] majority of the district judges in any judicial district may order a grand jury to be summoned in any county in the district when it is determined to be in the public interest. If the citizens grand jury process rests on the discretion of the judges of the district court to issue the order summoning the grand jury, then the petition itself is effectively relegated to an expression of the public interest rather than a legal instrument. Because the Legislature established a separate means for the Judges to gauge the public interest and issue an order summoning a grand jury sua sponte, the Petition must necessarily have a more substantial effect that cannot be suppressed through the exercise of judicial discretion. b. The order summoning the grand jury is ministerial in nature. The order summoning the grand jury cannot include any directives relating to the summoning of the grand jury because those details are established elsewhere, namely in sections (c)(1) and (d) of the grand jury statute and K.S.A. 2015 Supp. 43-107. Put another way, the what, who, when, where, why, how of summoning the grand jury are already settled: a grand jury, 15 qualified jurors, within 60 days of the filing of the petition, in
13 the county, for the reasons stated on the petition, in the same manner as petit jurors for the district court. This leaves no room for discretion on the Judges part (with the trivial exception that they may specify the exact time and location where the grand jury will convene, subject to the aforementioned conditions); the order only starts the process outlined in these statutes. c. The consequences of noncompliance are more severe than those of compliance. If the Judges refuse to issue the order summoning the grand jury, the rights of 925 qualified electors of Douglas County to initiate a grand jury investigation into alleged felonies are entirely denied. Furthermore, if the allegations in the Petition are indeed factual but cannot be proven without the kind of evidence that only a grand jury can collect and examine, the subjects of the petition will have committed serious violations of the law with no consequences. On the other hand, if the Judges do issue the order, the grand jury may still determine that the facts do not support the allegations and choose to return no bill of indictment, and the subjects of the allegations in the petition would not be denied their procedural due process. d. The subject matter of the grand jury statute is a fundamental Constitutional right. The Fifth Amendment requires that [n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury. Because this Amendment has not been incorporated against the states, grand juries are seldom utilized in Kansas jurisprudence. The Petitioner holds that this must not suggest that grand juries remain unused because of the unusual nature and difficulty of the citizens grand jury process.
14 On the contrary, the citizens grand jury process should be embraced as a means by which ordinary people can engage directly in the judicial process as both the sword and shield of justice, and it is no coincidence that a strong historical basis exists for holding that the grand jury should operate to control abuses by the government and protect the interests of the accused. Coleman v. Alaska, 553 P.2d 40 (1976). 3. The Respondents must be directed to issue an order to summon a grand jury by a writ of mandamus from the Kansas Supreme Court. Section 1 of Article 3 of the Kansas Constitution grants the Kansas Supreme Court general administrative authority over all courts in this state, which has been repeatedly held to include the authority to command public officials, including judges of the district court, to carry out mandatory public duties, of which issuing an order to summon a grand jury is one example, as elucidated above. Because mandamus is clearly feasible, the question at hand is whether mandamus is appropriate in this instance. This Court held in Long v. Board of County Com rs of County of Wyandotte that mandamus is appropriate when an issue of law affects public officials, presents an issue of great public importance and significant State interest, and requires a speedy adjudication. 254 Kan. 207, 864 P.2d 724 (1993). This case affects both the Judges and Kobach, all of whom are public officials, it presents an issue relating to the right of 925 qualified electors of Douglas County to begin an investigation into alleged crimes that may affect voter registrations statewide, and the relevant statute contains a 60-day time limit in which the Judges are required to act.
15 From these factors, the Petitioner concludes that mandamus is both a feasible and appropriate remedy for the failure of the Judges to fulfill their public duty to summon a grand jury in accordance with the grand jury statute. Table of Authorities Laws and Statutes U.S. Const. amend. V. Kan. Const. art. 3, 1. Kan. Const. art. 3, 3. K.S.A. 2015 Supp. 22-3001 et seq. K.S.A. 25-2420, -2421a, and -2432. K.S.A. 2015 Supp. 43-107. K.S.A. 60-801 et seq. L. 1970, ch. 129, sec. 22-3001 L. 1976, ch. 163, sec. 12 L. 1986, ch. 115, sec. 61. L. 2005, ch. 189, sec. 1; L. 2011, ch. 100, sec. 8.
16 L. 2013, ch. 85, sec. 2 L. 2014, ch. 50, sec. 1 L. 2016, ch. 87, sec. 3. Rules 2015 Kan. Ct. R. Annot. 88: Rule 9.01. 28 U.S.C App. (1994), R. Fed. Claims, App. C (2)(D). Cases Batchelor v. District Court, 81 Nev. 629, 408 P.2d 239 (1965). Mobil Oil Corp. v. McHenry, 200 Kan. 211, 436 P.2d 982 (1968). Coleman v. Alaska, 553 P.2d 40 (1976) Unger v. Horn, 240 Kan. 740, 732 P.2d 1275 (1987). Long v. Board of County Com'rs of County of Wyandotte, 254 Kan. 207, 864 P.2d 724 (1993) Littrice v. Kansas, 30 Kan. App. 2d 800, 48 P.3d 690 (2002). Trotter v. Kansas, 288 Kan. 112, 200 P.3d 1236 (2009). Treatises 63A Am.Jur.2d, Public Officers and Employees 190. 2013 Kansas Appellate Practice Handbook, ch. 4.
17 Conclusion, in accordance with the reasons stated in the Memorandum and supported by the Authorities listed above, the Petitioner respectfully requests this honorable Court grant this petition for writ of mandamus and direct the judges of the district court of Douglas County to issue an order summoning a grand jury in the county to investigate alleged violations of law and to perform such other duties as may be authorized by law. Because the Respondents have already stated their reason for refusing to fulfill their public duty, because the right to relief is clear, and because it is apparent that no valid defense to this petition can be offered, the Petitioner further requests that relief be granted ex parte in accordance with Supreme Court Rule 9.01(c)(2). Dated this 26th Day of August, 2016. Respectfully submitted, Steven Davis Pro se litigant 2449 W 24th Ter Apt 3 Lawrence, KS 66047 (913) 683-3719 stevenxdavis@yahoo.com Petitioner
No. Petitioner,, vs. Respondents. Petition to Summon a Grand Jury ( Petiton ) Cover Sheet, Example Petition Sheet (Face), Example Petition Sheet (Reverse) _ Steven Davis Pro se litigant 2449 W 24th Ter Apt 3 Lawrence, KS 66047 (913) 683-3719 stevenxdavis@yahoo.com Petitioner
No. Petitioner,, vs. Respondents. Affidavit of Douglas County Election Officer ( Affidavit ) One Sheet _ Steven Davis Pro se litigant 2449 W 24th Ter Apt 3 Lawrence, KS 66047 (913) 683-3719 stevenxdavis@yahoo.com Petitioner
No. Petitioner,, vs. Respondents. Order Dismissing Petition ( Order ) Two Sheets _ Steven Davis Pro se litigant 2449 W 24th Ter Apt 3 Lawrence, KS 66047 (913) 683-3719 stevenxdavis@yahoo.com Petitioner