00011 MOTION TO DISQUALIFY C. WILLIAM OSSMANN UNDER K.S.A. 75-702


Bret D. Landrith

Plaintiff appearing Pro se

Apt. E, 5306 SW West Dr.

Topeka, KS 66606

Cell 816-783-7495

bret@bretlandrith.com

 

IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS

 BRET D. LANDRITH                                    

Plaintiff                                                                          

 v.                                                                                                

DON JORDAN SECRETARY OF SRS                                               Case No. 10C1436

(In his personal capacity)                                                                         Div. 6

DAVID WEBER SRS Case Manager                                                           

(In his personal capacity)                                    

BRIAN FROST                                                                                       Verified Complaint

CRAIG E. COLLINS                                     

YOUNG WILLIAMS PC                                                                         Jury Trial Demanded

Defendants                                     

 

MOTION TO DISQUALIFY C. WILLIAM OSSMANN UNDER K.S.A. 75-702

1.            SRS staff attorneys likely advised and controlled the conduct of Secretary of the SRS DON JORDAN and SRS caseworker DAVID WEBER that resulted in the present legal action.

2.            SRS staff attorney C. WILLIAM OSSMANN himself is a material witness to the alleged conduct and identified as such in the body of the complaint at paragraphs 14 and 23.

3.            The present action would not have been filed against Secretary of the SRS DON JORDAN and SRS caseworker DAVID WEBER and the State of Kansas would not now be financially liable for over $5 Million Dollars if the Secretary of the SRS DON JORDAN had responded appropriately to the plaintiff’s demand letter.  

MEMORANDUM OF LAW

            The plaintiff gives notice to the court that SRS staff counsel are disqualified under state law from representing the Secretary of the SRS, Defendant DON JORDAN and SRS caseworker DAVID WEBER in an action for violation of federal statutes with penalty provisions and where the lawful exercise of their authority is challenged.

SRS Has No Legislative Authority to Defend Itself in a 42 USC §1983 Action

            SRS is an administrative agency of the state of Kansas. As such, it has only the power and authority conferred by the Legislature in SRS's authorizing statutes. Pork Motel Corp. v. Kansas Dep't of Health and Environment, 234 Kan. 374, 378 (1983).

            SRS staff attorneys have no power to represent in court the lawfulness of Kansas officials in the exercise of their authority granted in the state constitution or by the state legislature. State ex rel. Stephan v. Finney, 251 Kan. 559, 578, 836 P.2d 1169 (1992) ("'[T]he executive power is more limited than legislative powers, extending merely to the details of carrying into effect laws enacted by the legislature . . . , the legislature having the power, except where limited by the constitution itself, to stipulate what actions executive officers shall or shall not perform.'").

            The attorney general is the proper party to defend this action. See K.S.A.2007 Supp. 75-702; Rowlands v. State, 187 Kan. 174, Syl., 354 P.2d 674 (1960) (action questioning authority of governmental agencies should be brought in name of the state on the relation of the attorney general or county attorney).

Attorney General Shall Defend

            The Kansas Constitution designates the attorney general as an executive officer in Article 1, § 1 but does not define the attorney general's duties. In the absence of constitutional definition of powers, the legislature has the power to define the attorney general's duties.

            In the case of State of Kansas v. Abu Isba, 235 Kan. 851; 685 P.2d 856; 1984, the court found K.S.A. 75-702 makes it incumbent upon the attorney general to appear for the State and prosecute or defend, in any court, any civil or criminal matter in which the State may be interested, when the attorney general is 'required by the governor or either branch of the legislature' to do so. Absent gubernatorial or legislative direction, that statute requires the attorney general to appear and defend only those cases which are before the Kansas Supreme Court. K.S.A. 75-108 also imposes upon the attorney general the duty to protect the interests of the State in any action when informed of such action by the governor.

42 USC §1983 action Has Nature of a criminal prosecution

            The plaintiff while a private citizen and not an attorney is suing the Secretary of the SRS, Defendant DON JORDAN and SRS caseworker DAVID WEBER for violation of federal statutes. The nature of the proceeding is in several dimensions that of a criminal action. The plaintiff is permitted to enforce the laws of the United States by statutory provision in 42 USC §1983. However SRS staff attorneys including the defendant DON JORDAN and DAVID WEBER’s present attorney are not permitted to represent the Governor of the State of Kansas in defending the exercise of authority this action alleges was in violation of federal laws and therefore outside of the authority of SRS officials. Under Kansas law, the Attorney General of Kansas must perform this duty.

            The plaintiff while a private citizen and not an attorney is acting under the federal statutory authority of 42 USC §1983 as a private attorney general. In Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) one of the earliest cases construing the Civil Rights Act of 1964, the United States Supreme Court ruled that "A public accommodations suit is thus private in form only. When a plaintiff brings an action . . . he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority." The United States Congress has also passed laws with "private attorney general" provisions that provide for the enforcement of laws prohibiting employment discrimination, police brutality, and water pollution. Under the Clean Water Act, for example, "any citizen" may bring suit against an individual or a company that is a source of water pollution.

            Another example of the "private attorney general" provisions is the Racketeer Influenced and Corrupt Organizations Act (RICO). RICO allows average citizens (private attorneys general) to sue those organizations that commit mail and wire fraud as part of their criminal enterprise.[citation needed] To date, there are over 60 federal statutes that encourage private enforcement by allowing prevailing plaintiffs to collect attorney's fees.

State Law Decisively Requires Attorney General or District Attorney in Criminal Cases

            The authoritative case law of State of Kansas courts regarding the requirement of an Attorney General or a District Attorney to control a criminal case clearly shows that only these specially sworn government attorneys and their assistant attorneys can represent executive branch officials defending charges they have violated statutes with attendant penalty provisions.

            In the 1906 Supreme Court case of In Re Ted Broadhead, 74 Kan. 401; 86 P. 458; (1906) the court held in unquestionable terms that: The county attorney is the representative of the state in criminal prosecutions, and, subject only to a limited direction by the court, controls such actions. [Emphasis added].  Following Broadhead, an abundance of cases in a myriad of factual situations held the same law to be applicable, giving force and effect to the responsibilities of the prosecutor in maintaining control of cases in their jurisdiction. 

            A criminal prosecution is a state affair, and the control of it is in the public prosecutor." ( State v. Wilson, 24 Kan. 189, 192.); "The law makes it the duty of the county attorney to conduct criminal prosecutions on behalf of the state, and all steps in the trial are alike under his supervision and

control." ( State v. Wells, 54 Kan. 161, 165, 37 P. 1005.) "No one but the county attorney, or the attorney-general on proper occasion, or persons deputized by them, may control prosecutions within a

county." ( State v. Snelling, 71 Kan. 499, 506, 80 P. 966.).

Attorney General Must Represent the State

            The closest to an express holding of the principal the State of Kansas Attorney General and not an SRS staff attorney can be found in the prescription of who must represent the state.  In the case of In re Broadhead, 74 Kan. 401, 405, 86 P. 458, it was stated: "The county attorney is the representative of the state in criminal prosecutions, and, subject only to a limited direction by the court, controls such actions."

            The plaintiff concedes that the State of Kansas Attorney General may likely investigate Secretary of the SRS defendant DON JORDAN for criminal prosecution under the laws of Kansas given the events alleged in this action and the public testimony and evidence of extrinsic fraud to take children from families reported to the legislature and in the news media. The Attorney General’s office has maintained it can both prosecute and defend state officials, simultaneously. However in such circumstances defendant DON JORDAN may seek and would have a right to private counsel at his own expense, even in the present action. However an SRS staff attorney cannot be this private counsel.

 

                                                                                           Respectfully submitted,

 

S/Bret D. Landrith

Bret D. Landrith

Plaintiff appearing Pro se

 

CERTIFICATE OF SERVICE

 

I hereby certify I have provided on November 5, 2010 a true copy of the above to the defendants via US Mail First Class postage pre-paid as indicated:

 

Defendant DON JORDAN and Defendant DAVID WEBER to their counsel C. William Ossmann, Chief of Litigation at the Kansas Department of Social and Rehabilitation Services,915 SW Harrison, 6th floor, 66612-1354.

Defendant BRIAN FROST through his attorney J. Steven Pigg, FISHER PATTERSON, SAYLER, & SMITH, LLP  PO Box 949, Topeka, KS 66601-0949.

Defendant YOUNG WILLIAMS PC through their attorney Amy Raymond, 120 SE 6th Street Suite 106, Topeka, KS 66603.

 

Defendant CRAIG E. COLLINS at              3209 SW Bell Ave, Topeka, Kansas 66614.

Via US Mail.

 

 

S/Bret D. Landrith

Bret D. Landrith

Plaintiff appearing Pro se

 

 

Ċ
Bret Landrith,
Nov 10, 2010, 2:35 PM
ĉ
Bret Landrith,
Nov 10, 2010, 2:42 PM
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