You are on page 1of 57

May 2,2019

Kansas Commission on Judicial Qualifications

301 SW Tenth Avenue

Topeka Ks 66612

Case Number 2018LM114P Capital One vs. Matthew D. Schwob in Crawford County and
13CV32P Wells Fargo vs.Julie Brunskill in Crawford County

This is a complaint against Senior judge Richard Smith of Linn County District Court, P.O.Box 350,
Mound City, KS66056 who is hearing cases in Crawford County in case number 13CV32P and
Kansas Commission On Judicial Qualifications Judge Robert Fairchild of 301 S.W.10th Avenue Room
374 Topeka Ks 66612 who has been assigned to case number 2018LM114P in Crawford County
after a recusal by 11th district Crawford County judge Kurtis Loy.

Greetings Ethic Commission:

I had a hearing by telephone conference on March 6, 2019 at 1:30 p.m. in case number
2018LMl14P Capital One vs. Matthew D. Schwob that was continued because Judge Fairchild was
unprepared and did not have a court of record at the start of the hearing. Judge Fairchild tried to
move on with the hearing even though I had filed a motion for change of judge with affidavit which
he said he read but he was wanting to move on with the hearing even though K.S.A. 20-311d( c)
states differently. I questioned if there was a court of record and he said no and then he went to get
the court reporter since I requested a court of record and he was not prepared to have a court
transcript. After the court reporter came into case number 2018LM114P Capital One vs. Mathew D.
Schwob judge Fairchild tried to move on with the hearing until I ask him "doesn't another judge
have to hear a motion for change of judge with affidavit your honor"? He then said yes that is true
and he asked me if I had also sued Judge Richard Smith in the case of 15CV79P where I had sued
Judge Robert Fairchild and I stated "yes" and Judge Fairchild said he was going to give the "motion
for change of judge with affidavit to Richard Smith but since I had sued him too he wouldn't". Judge
Fairchild doesn't have any authority under K.S.A.20-311d( c) to assign the motion for change of
judge to anyone. It is now up to the departmental Justice Lee Johnson to assign the motion for
change of judge with affidavit to another judge in Kansas to determine the sufficiency of the
affidavit that I filed.

A friend of mine Julie Stover-King just had a case with judge Richard Smith in 13CV32P Wells Fargo
vs. Julie Brunskill in Crawford County who is the same judge that judge Robert Fairchild was trying
to give the motion for change of judge with affidavit to determine which I filed against judge
Fairchild and judge Richard Smith showed how biased and prejudiced he is against Pro Se litigants
which violates Rule 2.3 Bias, Prejudice, and Harassment of the code of judicial conduct when he
stated at the hearing on 4-2-19 at 10:00 am."On page 15 of the court transcript he states "I reiterate
they have a constitutional right to represent themselves but I just point out that there is a
VALIDATION of the old adage that a person that represents themselves in Court has a FOOL for BOTH
a LA WYER and a CLIENT and that there's a REASON FOR THAT EXPRESSION because I even
recommend that Jav.yers not represent themselves in Court. etc.. etc.". Judge Richard Smith just called
me a (FOOL) because I have represented myself Pro Se in the case of 2018LM114P Capital One vs.
Matthew D. Schwob and I feel that what he said was a demeaning nickname and attempted humor
which is not allowed under Rule 2.3 Bias, Prejudice, and Harassment(A) (B) (C). Under Comment [1]
it states that "a judge who manifests bias or prejudice in a proceeding impairs the fairness of the
proceedings and brings the judiciary into disrepute. COMMENT [2] says that "examples of
manifestations of bias or prejudice include but are not limited to epithets; slurs. demeaning
nicknames. /I It also violates Rule 1.2 Promoting Confidence in the Judiciary because how can any
Pro Se litigant have confidence in a judge who thinks they are a FOOL for representing themselves.
This also violates Rule 2.2 Impartiality and Fairness because under COMMENT [1] it says "to ensure
impartiality and fairness to all parties, a judge must be objective and open-minded".

He goes on to state on page (5) of the court transcript that" but had to do with the fact that I like in
all ofmv cases either did or did not suggest to her that it was not wise for anvone to ever represent
themselves in Court. particularlv someone who is not an attorney, and I made a remark about that
admonishment in a prior order. she claims I never told her that".

How can a judge be objective and open minded when he already states on the record with
validation that anyone that represents themselves in court is a FOOL?

He states in page (5) "1would defer to her memory, if] didn't actually suggest like 1do in 99.99
percent of my cases with pro se litigants that it is usually frowned upon as prudent and wise for
someone to represent themselves. "

He also seems to not take any responsibility from a court order which he admonishes her but she
really wasn't admonished and he uses another insulting and demeaning nickname cavalier which
he states on the record.

Judge Smith then goes on to read on the court record on page (13) line 6 about "the defendant's
cavalier attitude", and mentions it again on line 16-17 when he reads on his record the "defendant's
cavalier attitude regarding the upcoming trial and her decisions to engage in other activities rather
than trial preparation concerned the court greatly from the standpoint that it appears she fails to
understand the severity ofthe circumstances re-enforcing the courts prior admonition that she would
be better of! represented by counsel."

Judge Smith did state that he had admonished her in a court order from March 24, 25 2019 hearing
for not having counsel at the December 11, 2018 hearing and the fact that he really didn't admonish
her at the December 11, 2018 hearing just shows he retaliated against her and that according to
K.S.A. 60-258 entry ofjudgmentthat he had (ADMONISHED HER NOT HAVING COUNSEL)!!! It was
in the court order from the March 24, 25 2019 hearing where he stated he admonished her prior for
not having counseL Why don't judge Smith just admit he messed up? How does a judge admonish
anyone in a friendly fashion which is not meant to be mean or condescending yet he has called her
nefarious, frankly naiVe, cavalier, admonished her for not having counsel, and has now called her a
fool because she is Pro Se?

Judge Smith goes on to show how he doesn't use any (ABUNDANCE OF CAUTION) on page (15) line
12-25 when he says "1don't know why she would have been terrified of me, 1think the statement that
she has reasons to be afraid of me would run contrary to everything that's happened in this action
because we've been nothing but friendly. We even had an off the record conversation after the last
hearing that was real friendlv and kind oUoking around about some of the stuffshe put in the motion
about me. And 1was complementing her for digging that information up because it was accurate
because 1am an elder ofthe church or 1was until recentlv so. 1mean. it was an interesting thing but 1
did not have a problem with any ofthat. II

It isn't funny, and that's why he made the jokes (OFF THE RECORD) rather than on the court
transcript where he would prove that he commented on a motion for change of judge with affidavit
which he is barred from according to K.S.A. 20-311d(c).

Judge Smith also admonished Julie Stover-King for not having counsel in a March 24, 25 2019 court
order from a December 11, 2018 hearing in which he (ACTUALLYNEVER DID ADMONISH HER)!
He talks about the admonishment on this court transcript but he never admits that he did admonish
her by mistake and that he never did admonish her and that he will modify or change the court
order from the March 24, 25 2019 hearing where he did admonish her in a court order prior for not
having counseL He stated the following from the court transcript at the pre-trial conference on 4-2-
19 at 10:00 a.m. just (3) hours before trial when there should have been at least (2) weeks to triaL

He says "actually. the admonishment. apparently whether or not 1 ever gave it is not the issue.

I want to know if that is not the issue then why is it in a court order? Why did he put in the court
order on March 24, 25 2019 that he had admonished her prior for not having counsel when he
didn't? What does judge Richard Smith expect people to do in small claims court in Kansas because
attorneys aren't allowed? Are all the litigants fools because they don't have an attorney?

I have enclosed the (SETTLEMENT OFFER) from attorney Sean McElwain for $1000 dollars which I
feel I do not owe because it has already been charged off/ paid for by Capital One's insurance as a
profit/loss write off and this is fraud. However, since I (DO NOT/CAN NOT) have any
(CONFIDENCE) in the judiciary in Crawford County courts I am making a (COUNTER/OFFER) in the
amount of$500 to (SETTLE) case number 2018LM114P Capital One vs. Matthew D. Schwob since I
feel that both Judge Fairchild and Judge Smith have violated code of judicial conduct Rule 1.2
Promoting Confidence in the Judiciary since Judge Fairchild wanted to assign the motion for change
of affidavit without a court reporter to Judge Smith. Judge Smith admitted on record that he thinks
anyone who does not have an attorney is a (FOOL) and I am Pro Se in case number 2018LM114P
Capital One vs. Matthew D. Schwob so therefore I am considered a fool by Crawford County court
and I don't have any confidence pursuing my case in Crawford County where I am considered a fool
simply because I couldn't afford an attorney and was forced to represent myself on an insurance
profit/loss write off where attorney Sean McElwain purchased the alleged debt with Capital One for
(pennies on the dollar).

Please reprimand both judge Fairchild and judge Smith for not being prepared at every hearing and
not having a court reporter for a proper court of record to record everything that is stated, for both
not following proper protocol on a motion for change of affidavit and trying to rule on them, make
jokes about them, or assign them which are not allowed under K.S.A.20-311d(c).

Judge Smith needs his own reprimand under Rule 2.3 or his attempted humor, his bias and
prejudice against Pro Se litigants by calling us (FOOLS)and 2.16 for his retaliating against Julie
Stover-King by calling her frankly naiVe, nefarious, cavalier, and admonishing her in a court order in
which he never really did because she had made a prior ethic complaint against him and filed a
motion for change of judge with affidavit against him which he commented on off the record which
is unethical.

Sincerely,

Matthew Schwab,

1822 JF Kennedy

Pittsburg Ks 66762
KRAMER & FRANK, P. c. :MAl;XICE FRA,"K (1901-1996)

ATTORNEYS AT LAW 1420NW VIVION RD, SmTE 105, ST. Lams OFFICE:
KANSAS CITY, MO 64118-4511 9300DIELMAN IND. DR., STE 100
PHONE: (816)471-0030 ST. Lams, MO 63132-2205
SEAN A. MCELWAIN (800) 288-5437 PHONE: (314)991-1835
DIRECT DIAL: (816) 778-8621 (816) 472-0963 FAX: (314)991-0485
DIRECT FAX: (816) 759-3621
website: lawusa.corn RLPL Y TO K\.l,{SAS CITY OFFICI:
email: sean.mcelwain@lawusa.com
April 2, 2019

MATTHEW D SCHWOB
1822 J F KENNEDY ST
PITTSBURG KS 66762

Our Client: CAPITAL ONE BANK (USA), N.A.


REF: [vlAl"fHEW
D SCHWOB ~ Accoun~: XXXXXXXXXXXX8892
Refer to our file #: 92995355 Dept: F7
Case Number: 2018-LM-000114

Mr. Schwob:

This is in reference to your telephone call to our office in


which you offered to settle the above referenced case for a lump
sum payment of $500. Our client, Capital One Bank (USA), N.A. has
given us authority to accept a lump sum payment of $1,000.00 to
settle this case. The settlement would also require you to
dismiss your counterclaim with prejudice. Upon receipt and
clearance of the settlement amount of $1,000.00, we will forward
to you an agreed order dismissing both our case and your
counterclaim with prejudice. You will need to sign the order and
return to our office for filing with the Court.

Please contact me with your position regarding this offer. Your


account is flagged as "cease and desist" in our system but we can
respond to your telephone calls and written requests.

Very sincerely,

SEAN A. MCELWAIN
ATTORNEY AT LAW
(816) 778-8621

This communication is from a debt collector. This is an attempt to collect


a debt and any information obtained will be used for that purpose.
Janet Vanleeuwen, C.S.R.
Certified Shorthand Reporter
602 N. Locust
Pittsburg, Kansas 66762
(620) 231-3570

April 12, 2019

Ms. Julie Stover-King

RE: Wells Fargo Bank vs Julie Brunskill


Case No. 13CV32P
Motions hearing held on 04/02119 $66.00
1

2 IN THE DISTRICT COURT OF CRAWFORD COUNTY, KANSAS

3
WELLS FARGO BANK, NA,
4
Plaintiff,
5
vs. CASE NO. 13CV32P
6
JULIE S. BRUNSKILL;
7 JOHN DOE (Real Name
Unknown); Mary Doe (Real
8 Name Unknown); and the
unknown heirs, executors,
9 administrators, devisees,
trustees, creditors and
10 assigns of such of the
defendants as may be
11 deceased; the unknown
spouses of the defendants;
12 the unknown officers,
successors, trustees,
13 creditors and assigns of
(' such defendants as are
14 existing, dissolved or
dormant corporations; the
15 unknown guardians and
trustees of such of the
16 defendants as are minors
or are in anywise under
17 legal disability, and all
other persons who are or may
18 be concerned,

19 Defendants.

20

21 TRANSCRIPT OF PRETRIAL CONFERENCE

22 PROCEEDINGS had before the Honorable RICHARD M.

23 SMITH, Senior Judge Holding Court in the District

24 Court of Crawford County, Kansas, at Pittsburg,

,-.
c ..• 25 Kansas, on the 2nd day of April, 2019.
2

2 APPEARANCES:

3 The Plaintiff appearing by and through its

4 counsel, Ms. Linda Tarpley, of Shapiro & Kreisman,

5 LLC, 6811 Shawnee Mission Parkway, Suite #309,

6 Overland Park, KS 66202.

7 The Defendant, Julie Stover-King, appeared

8 not.

10

11

12

13

( 14

15

16

17

18

19

20

21

22

23

24

25
,"-v
I
3

1 APRIL 2, 2019

2 MS. TARPLEY: The case scheduled on this

3 morning's docket is Case No. 13CV32P. Would counsel

4 please enter her appearance.

5 MS. TARPLEY: Linda Tarpley appearing on behalf

6 of Wells Fargo Bank, Your Honor.

7 THE COURT: The record should reflect that it is

8 now 15 minutes after 10:00. The Court has waited this

9 amount of time to see if the defendant would appear

10 and there are some addendums to the ,record that I

11 would like to make before we begin.

12 First, on -- let me start this way. The Court

13 rescheduled the pretrial conference in this matter and


...~' ..,

(
14 attempted to hold the pretrial conference by telephone

15 last week. That conference at least resulted in the

16 Court entering one order which was that the pretrial

17 questionnaires would be adopted by reference and

18 thereby incorporating the information that is

19 contained in those questionnaires in making it the

20 Court's pretrial order.

21 Approximately ten or 15 minutes into the

22 conference it became apparent to the defendant that

23 there was no record being maintained of the pretrial

24 conference. The Court out of an abundance of caution

25 and because of the defendant's obvious concern with


!
.~
4

1 the lack of a record then entered no other orders

2 except to informally suggest that anything that

3 transpired during the course of the telephone

4 conference I would reiterate this morning or today on

5 the record.

6 Frankly, the defendant was, I think, the best

7 description would be obsessed with a single concept

8 and that was how the case could go forward in light of

9 Judge Wachter's actions on the case and his subsequent

10 admonishment for an ethical violation in a matter that

11 ,is apparently related to the defendant's husband, if I

12 understand the facts correctly, but wasn't part of

13 this case or maybe even was part of this case, I'm not

14 sure.

15 But in any event wasn't part of the issues and we

16 really couldn't get passed that with the defendant and

17 so I told the defendant that I would entertain motions

18 that she filed prior to trial and that we would

19 terminate the conference, again, with the suggestion

20 that I would reiterate whatever was stated during the

21 conference this morning, technically when we took up

22 the trial, because things have evolved somewhat since

23 then.

24 One of the other issues was that apparently in a

25 pleading the defendant makes some remark about how I


5

1 admonished her and the context in which she states it

2 makes it seem quite critical and negative.

3 Actually, the admonishment, apparently whether or

4 not I ever gave it is not the issue, but had to do

5 with the fact that I like in all of my cases either

6 did or did not suggest to her that it was not wise for

7 anyone to ever represent themselves in Court,

8 particularly someone who is not an attorney, and I

9 made a remark about that admonishment in a prior

10 order, she claims I never told her that.

11 I would defer to her memory, if I didn't actually

12 suggest like I do in 99.99 percent of my cases with

13 pro se litigants that it is usually frowned upon as

( 14 prudent and wise for someone to represent themselves.

15 But I did represent to Miss Stover-King that I am

16 an absolute believer in ones constitutional right to

17 represent themselves and I would defend that right to

18 the last of my breath and that she had the right to do

19 that.

20 Now, that is basically the sum and substance of

21 my recollection of everything that happened in that

22 conference.

23 Miss Tarpley, have I left anything out that you

24 can think of?

25 MS. TARPLEY: No, Your Honor.


~~
6

1 THE COURT: Now, I'm given to understand that

2 there are additional pleadings filed that might

3 suggest that something else was said during that

4 conference or maybe more than one other something else

5 and I just want the record to reflect that if there

6 are any representations to anything being said other

7 than what I just reiterated they're a lie and I'm

8 going to call it what they are because this case is

9 frankly getting a little out of control and I think

10 anybody could see that from the raft of motions.

11 Now, let me explain why we're here this morning.

12 As I stated to Miss Stover-King that she would have

13 the right to file motions and I would take it up.


,
( 14 We're scheduled for trial this afternoon at 1:15.

15 I am concerned based upon Miss Stover-King's

16 suggestions as to what she believed might be at issue

17 that this trial might take most of the afternoon. It

18 may not but it very certainly could.

19 I until late yesterday was scheduled to be in

20 Beloit, Kansas, tomorrow morning and so I decided that

21 in order to have the adequate opportunity to truly

22 consider and reflect on her motions and whatever

23 argument she would like to add to that I informed the

24 parties that I was going to start the trial at 10:00

25 a.m. this morning -- not the trial, excuse me, but


i
<
~~
7

1 take up pretrial motions at 10:00 o'clock, allowing

2 two hours to take up these motions.

3 Now it is stated in an e-mail initially that I

4 think first that she could not be here because she has

5 to work and the second e-mail that says she would have

6 to use up sick time, she's already taken a half a day

7 vacation in order to be here this afternoon.

8 I ended the communication from my end early this

9 morning sometime around 7:00 a.m. with an e-mail that

10 basically said -- because she c

11 communications that now this is al ge~R~ done for the

12 conven'eRce of someone else. I'm not sure who

13 because actually I'm doing this for her convenience so

l, 14 that her motions can be thoroughly considered and I

15 reiterated that fact and that this was for her

16 convenience, no one else's, that I was going to begin

17 at 10:00 o'clock and everyone should govern themselves

18 accordingly.

19 That is the e-mail that I sent out and we can put

20 that in the record later if you want to but that's the

21 sum and substance of that e-mail. I've waited until

22 10:15, she's not here, and I told her that I would

23 take up these motions and rule on them.

24 Miss Tarpley, do you have any response you want

25 to make to any of these?


I,~
8

1 MS. TARPLEY: Honor, I haven't seen them

2 because they were filed approximately 4:00 o'clock

3 yesterday evening is my understanding. That's 4:00

4 o'clock the day before trial and in light of the fact

5 that they cannot be electronically filed, they have to

6 be scanned, they are still not available to me to have

7 any idea what she has filed or what she's alleging.

8 THE COURT: Okay. The first one is a motion to

9 stay all proceedings and-or possibly consolidate the

10 case. That has to do with apparently a petition in

11 the form of a writ of mandamus which I have to presume



12 haven't seen this yet because, 'm the

13 my understand'ng that service of


r
{
\ 14 proeess was issued to Lynn County.

15 I' }onking forwara to seeing

16 now Dut it is a reference to a new case, 19CV43P, and

17 she's asking for a stay because of that writ of

18 mandamus action.

19 I have a -- Miss Stover-King seems to be for

20 whatever reason following the footsteps of another

21 litigant I have in another proceeding and this reads

22 very similar to and m assumin the mandamus petition

23 is probab~y very similar to the one M . Muathe filed

24 actually in the Supreme Court, not here, so I didn't

25 have to deal with it directly, but I'm going to


9

1 presume it's kind of like that one. And, in fact,

2 maybe it is an original action before the supremes, I

3 don't know, I haven't seen it yet, but I'm going to

4 deny the request to stay proceedings and it says

5 possibly consolidate. There will be no order of

6 consolidation with this purported mandamus action

7 that's been filed against me.

8 The second one is an oD]ection to decision ru lng

9 on defendant's pretrial motions and journal entry

10 regarding the same. This does not seem to read like

11 an objection to whether or not the journal entry

12 correctly reflects the Court's orders. It actually

13 would probably be more along the lines of some form of


/\.
14 a motion for reconsideration. It's nothing new,

15 nothing presented, s.o that aD] ect'i:onw±:1± 13e-overruled

16 in all of its regards.

17 Next, is a motion to disqualify you as a

18 potential -- because you're a potential witness in the

19 case. The motion alleges that you are licensed

20 attorney and you work under Shapiro &--

21 MS. TARPLEY: Kreisman.

22 THE COURT: Kreisman, thank you, LLC Firm, listed

23 as a defendant in Case No. 19CV44P which I'm guessing

24 is a new lawsuit ~nd I don't know--

25 MS. TARPLEY; Your Honor, I have had an


~~
10

1 opportunity to read that case. It is a quiet title

2 action, however, on its face it is defective because

3 it does not identify the property which she wants

4 titled cleared. She's alleging that Shapiro Kreisman

5 actually owns this loan that is being litigated.

6 THE COURT: Well, I suppose that will be an issue

7 later today.

8 MS. TARPLEY: Yes.

9 THE COURT: Well, I thought this would go to that

10 you would be a witness in the current action. It may

11 actually kind of be in here in a left-handed sort of

12 way but there's a lot of stuff in. here about the loan

13 and I think we've kind of hashed through some of this

( 14 but I'm going to make the specific finding that the

15 defendant has failed to demonstrate even a probable

16 cause level of proof that Miss Tarpley would be a

17 witness in the instant action. And, therefore,

18 there's no reason to believe that she is a witness and

19 so the motion to disqualify is going to be denied.

20 is a mofion to strike court orders on

21 January 15th and March 24th. This is the one that

22 said request to strike the court order from the

23 decision because defendant was never admonished at the

24 December 11, 2018, hearing. Yet the March 24, 25,

25 decision indicated that defendant had been admonished


11

1 prior for not having counsel.

2 Also says defendant has issues with the court

3 orders from the December 11th hearing because Rule 170

4 wasn't complied with and was not within 14 days of the

5 hearing and was filed on January 2, 2019, by the

6 plaintiff's attorney, not signed until January 15th by

7 the Court.

8 MS. TARPLEY: Your Honor, I'd like to address

9 that.

10 THE COURT: Sure.

11 MS. TARPLEY: Rule 170 requires that when the

12 Court authorizes or directs a party after a hearing to

13 prepare an order it can be prepared under Rule 170 in

14 which case it is prepared and sent to opposing counsel

15 for their objections. That was, in fact, done the

16 very next day as is reflected by the certification on

17 the Court's order that I sent it to Miss Brunskill the

18 12th of December. I did not receive a response from

19 her and under the rule we allow 14 days for her to

20 su mit an objection to either me or to the Court as to

21 the entry of that order, therefore, after the 14 days

22 and no response, I did submit it to the Court.

23 The fact that the Court did not sign the order is

24 nowhere in the rule requiring that the Court sign the

25 order within 14 days of receiving such order.


L
12

1 THE COURT: Absolutely.

2 how the rule is supposed to work because part of that

3 rule does not include in sending a copy of the order

4 initiall to the Court to sit on for 14 days like

5 everybody seems to believe it does and do.

6 "Defendant has been barred from discovery in the

7 case because defendant did not comply with the

8 statements from the judge at the December 11, 2018,

9 status hearing. That defendant complete discovery by

10 January 11th because the journal entry from the

11 December 11, 2018, hearing was never entered with the

12 Court until January 15th which was after the cut off

13 date for discovery."


( 14 That would probably be true but the problem is

15 that there was no request for any discovery until

16 March which there's not -- in fact late March, I think

17 around the 24th or something like that, my order

18 speaks to that.

19 "Defendant also has issues with the decision on

20 defendant's pretrial motions and journal entry

21 regarding the same electronically filed on Sunday,

22 March 24, 2019, where there was no hearing for

23 defendant to have oral argument."

24 I will say that is something that reminds me that

25 I did address that briefly during the telephone


l-..
13

1 conference, that I pointed out to Miss Stover-King

2 that actually oral argument was within the discretion

3 of the Court and I didn't think that oral argument

4 would benefit the Court in any material fashion and

5 that's why I went ahead and ruled.

6 "The defe.udaFlt'scavaJ.ier attitude regarding" --

7 here we go, regarding defendant's -- I'm sorry, I'm

8 ~ind of mUrnDling, maRes a court reporter crazy, pard8n

9 me, okay, here we go let me read this.

10 "Defendant also has issues with the decision

11 ruling on defendant's pretrial motions and journal

12 entry regarding same order electronically filed on

13 Sunday, March 24, 2019, where there was no hearing for

( 14 the defendant to have oral argument but defendant is

15 quite upset and concerned that Judge Smith on his

16 order March 24, 2019, had the nerve to state in his

17 record the defendant's cavalier attitude regarding the

18 upcoming trial and her decisions to engage in other

19 activities rather than trial preparation concerned the

20 Court greatly from the standpoint that it appears she

21 fails to understand the severity of the circumstances

22 re-enforcing the Courts prior admonition that she

23 would be better off represented by counsel.

24 The definition of caviler ~s arrogant and

25 defendant is not arrogant. Defendant was never


14

1 admonished at the December 11, 2018, status hearing,"

2 which I think I've already addressed that because I

3 think that's true but she goes on to say, "Judge Smith

4 has also barred defendant from discovery because he

5 says defendant was supposed to have it completed."

6 This is repetitious of when the journal entry was

7 done so it's really basically the same argument, the

8 fact that the journal entry wasn't filed until then.

9 I think she' Rina of missing the point that the order

10 was effective when I entered it from the bench but, I

11 mean, that's a who~e other question that I don't need

12 to get into.

13 This also raises the fact that -- there's an

14 objection because she wants a jury trial which we know

15 is not available in this kind of action.

16 She's also suggesting that I'm expediting the

17 case, turning it into some kind of an assembly line

18 action, I think is the language she's using.

19 "Defendant was stressed out, had anxiety, and

20 could not properly prepare for the March 28, 2019,

21 telephonic conference because the defendant was under

22 the impression she had already been admonished by the

23 Court and was scared to proceed with a proper defense

24 at the March 28th hearing," and then the objections.

25 You can only have that one of two ways. I either


i
'-
15

1 admonished her or I didn't. If I did admonish her it

2 would have been my standard admonishment and I try to

3 present that in as friendly a fashion as possible,

4 it's not meant to be mean or condescending.

5 I reiterate they have a constitutional right to

6 represent themselves but I just point ou that there

7 is a validation of the old adage that a person that

8 represents themselves in Court has a fool for both a

9 lawyer and a client and that there's a reason for that

10 expression because I even recommend that lawyers hot

11 represent themselves in Court, etc., etc., but if I

12 didn't give that to her which apparently she said I

13 didn't I don't know why she would have been terrified

( 14 of me.

15 I think that the statement that she has reasons

16 to be afraid of me would run contrary to everything

17 that's happened in this action because we've been

18 nothing but friendly. We even had an off the record

19 conversation after the last hearing that was real

20 friendly and kind of joking around about some of the

21 stuff she put in the motion about me. And I was

22 complementing her for digging that information up

23 because it was accurate because I am an elder of the

24 church or I was until recently so, I mean, it was an

,,,- 25 interesting thing but I did not have a problem with


16

1 any of that. I thought we were getting along actually

2 splendidly until apparently I didn't rule in her favor

3 but I'm going to deny this motion.

4 Is there anything you want to add before I do

5 that?

6 MS. TARPLEY: Your Honor, I don't remember

7 honestly you ever admonishing her. I think that

8 perhaps at the December 11th hearing which she was

9 present at, which she agreed to all of the dates. You

10 questioned her at length about what discovery she

11 wished to complete and could she do that by January

12 11th to which she agreed but afterwards as you said I

13 believe that there was a general conversation between

( 14 you, me, and Miss Stover-King just about life and at

15 that point you might have mentioned that she probably

16 should seek counsel. I don't recall anything ever

17 being said on the record but it would not be unusual.

18 I hear it from judges every single day in cases with

19 pro se defendants.

20 THE COURT: Well, that would have been the

21 standard thing. If I didn't do it I should have

22 probably but that's not a requirement and it's not

23 like she's having trouble finding the courthouse or

24 how to file pleadings so, I mean, she's representing

25 herself in a relatively adequate fashion.


17

1 The motion the last thing I'm going to do is

2 deny the motion to strike orders on January 15, 2019.

3 On the record she had the opportunity to be here,

4 sorry I had you here so early, counsel. I really

5 thought she would come and argue these motions.

6 I intend to actually begin the trial and I

7 anticipate her making some requests, absent

8 demonstration for really good cause, that I'm not

9 aware of so far, that she has not brought to my

10 attention, I do not intend to go back and revisit

11 these motions. I'm going to inform her that I ruled

12 on them and we're going to do the trial.

13 I don't know if -- I would like to be able to

\ 14 finish the trial today without keeping court personnel

15 here after hours so that's why we like to get started

16 on it because I do not know how long this will take.

17 MS. TARPLEY: Your Honor, presentation of my case

18 should take about half an hour.

19 THE COURT: Okay.

20 MS. TARPLEY: Tops.

21 THE COURT: Well, again, she's raised a lot of

22 issues, I don't know where we're going to go with

23 those.

24 MS. TARPLEY: I'll be objecting to them because

25 they will be beyond the pretrial questionnaire and her


~


18

1 pleadings.

2 THE COURT: We'll address those issues as we get

3 to them. All right. Thank you very much counsel.

4 Anything else to come before the Court on this

5 matter at this point?

6 MS. TARPLEY: Nothing, Your Honor.

7 THE COURT: Thank you. Court will be recessed.

8 MS. TARPLEY: Thank you, Judge.

9 (END OF PROCEEDINGS)

10

11

12

13

( 14

15

16

17

18

19

20

21

22

23

24

25
19

1
STATE OF KANSAS)
2 ) SS.
CRAWFORD COUNTY)
3

4 CERTIFICATE

5 I, Janet VanLeeuwen, a Certified Shorthand

6 Reporter, by virtue of the laws of the State of

7 Kansas, and the regularly appointed, qualified and

8 acting official Reporter for the Eleventh Judicial

9 District of the State of Kansas do hereby certify

10 that as such official reporter, I was present at and

11 reported in machine shorthand the above and

12 foregoing proceedings had on the date above set out

13 before the Honorable RICHARD M. SMITH, Senior Judge

( 14 Holding Court in the Eleventh Judicial District of the

15 State of Kansas, Sitting in and for the County of

16 Crawford.

17 I further certify that pursuant to law my

18 shorthand notes were transcribed under my supervision

19 and that the foregoing is a true and correct

20 transcript of my notes in said case.

21 Electronically filed with the Clerk of the

22 District Court this 16th day of April, 2019.

23
/s/ Janet VanLeeuwen
24 JANET VANLEEUWEN, CSR
OFFICIAL COURT REPORTER
2S Supreme Court #0854
J

~~
IN THE DISTRICT~od\rfoFtciiAWFORD COUNTY,KANSAS
Ctf.RK Of oist t~{JPT
CflAWFORO COUNTY
Bt' _
Wells Fargo .)

PLAINTIFF, )

Vs. ) CASENO. 2013CV32P

Julie Brunskill et al )

DEFENDANTS. )

l\JOTION FOR CBANGE OF JijJ)GE WiTH AFFiDA Vii:


Pursuant to K.S.A,60*311..d.(b) Chapter 60
COMES NOW, Defendant Julie Stover-King who was previously Julie Brunskill Pro Se and in
accordance with K.S.A.20-311d(b) and K.S.A.20-311e and states as follows:
AFFIDAVIT

County: Crawford )

)SS

State: Kansas )

I, Julie Stover-King, Affiant herein, declare under penalty of perjury under the laws of the
united states of America, that Affiant is competent to be a witness and that the facts
contained herein are true, correct, complete, and not misleading to the best of Affiant's first

Hand personal knowledge.

STATEMENT OF FACTS

Pursuant to K.S.A. 20~311d(b)

1. Defendant previously filed a Motion for Change of Judge on June 11, 2018 to have
Honorable Richard Smith promptly view the motion informally before the next
court hearing on July 6,2018 in accordance with K.SA 20-311d(a).
2. Defendant previously filed a Motion for Change of Judge on 12/21/2017 to have
Honorable Daniel Creitz promptly view the motion informally which he did and he
promptly disqualified himself from this case and a judicial Assignment No.9 was
issued on 1/10/2018 to have Honorable Richard M. Smith as being the new judge in
this case which was twenty (20) days after Defendant filed the motion for change of
judge. (Exhibit AX)
3. Defendant received a copy of the court ROA in this case on 7/2/2018 and Honorable
Richard M. Smith had not promptly ruled on the motion for change of judge that was
filed on 6/11/2018 which is twenty one (21) days after Defendant filed her motion
for change of judge in accordance with K.S.A.20-311d(a). (Exhibit AX)
4. Defendant is filing this motion for change of judge with affidavit prior to the court
hearing on July 6, 2018 to save the plaintiffs attorney time, the defendant herself
time, and the court time and that is why Defendant is filing this motion for change of
judge with affidavit prior to the court hearing on July 6, 2018.
5. Defendant filed an Objection of Assignment to judge Richard M. Smith and in the
Alternative this is a Motion to Disqualify Judge Richard M. Smith on June 11,2018
which Defendant stated most of the reasons that Defendant felt that a change of
judge was needed in this case under K.S.A.20-311d change of judge procedure.
6. The Defendant previously was involved in a class action civil lawsuit in case number
lS-CV-79P Class Action Petition For Injunctive Relief By SUl!LlYlaIY Judgment Group, By
Eric Muathe, Noah Day, Kasey King, James Beckley Jr., Travis Carlton, et aI., vs.
Honorable Kurtis Loy, Andrew James Wachter, Honorable Robert Fleming, Honorable
Jeffry Jack, Honorable Oliver Kent Lynch, Honorable Janice Russell, Honorable Richard
M. Smith, Honorable [ohn E. Sanders, Kansas Commission on Judicial Qualifications,
Stanton A. Hazlett, Michael Gayoso Jr., Tim Grillot, and Kansas Attorney General Derek
Schmidt. The Defendant was one of the Plaintiffs in that case and one of the Defendants
in the case that was represented by counsel Stephen Phillips, Assistant Attorney General
was Richard M. Smith which was filed on July 22, 2015 in (CLASSACTION PETITION
FOR INJUNCTIVE RELIEF) 2015CV79P which a list of plaintiffs in the case include
Judges Kurtis Loy, AndrewWachter, Robert J. Fleming, Lori Fleming, Jeffry Jack, Oliver
Lynch, Janice Russell, Richard M. Smith, [ohn E. Sanders, Kansas Commission on
Judicial Qualifications, Stanton A. Hazlett, Michael Gayoso, Jr., Tim Grillot, and Kansas
Attorney General Derek Schmidt. This case was later appealed in the court of appeals of
the state of Kansas appeal No. 16-116284-A Eric Muathe, et al, vs. Honorable Kurtis Loy,
et al, from the civil case of 2015CV79P. (Exhibit AA)
7. Defendant's husband Kasey King, along with Eric Muathe, James Beckley Jr., and Travis
Carlton all received filing restrictions from the motion for sanctions that Richard M.
Smith's attorney Stephen Phillips filed and was signed and granted in the above case of
2015CV79P by Judge Jack Burr on 06/13/2016. (Exhibit AB)
8. Defendant's husband also has made an ethic complaint against Senior Judge Richard M.
Smith with The Kansas Commission on Judicial Qualifications dated July 4, 2015 in case
number 2015MR2P In The Matter of the Grand Jury Petition for failing to properly fill
out the yearly required judicial financial disclosure report and Defendant feels that the
court would be biased and prejudiced against her for the complaint her husband filed
previously against the court. (Exhibit AC)
9. Defendant's father-in-law Michael King made an ethic complaint with the Kansas
Commission on Judicial Qualifications against Senior Judge Richard M. Smith where the
commission met on December 4, 2015 where the complaint was continued until
February 5, 2016 for lack of quorum because Judge Cameron recused. (Exhibit AD).
10. Defendant's husband Kasey King filed an ethic complaint with the Kansas Commission
on Judicial Qualifications against Senior Judge Richard M. Smith and received a letter
dated November 23, 2015 from the commission where they stated the complaint would
be heard on December 4,2015. (Exhibit AE)
11. Defendant's husband Kasey King received letters from the Kansas Commission on
Judicial Qualifications dated December 22, 2015 and February 23, 2016 where the two (2)
complaints filed against Senior Judge Richard M. Smith were continued until April 1,
2016 for lack of quorum because Judge Cameron and Judge Fairchild recused. (Exhibit
AF, AG, AH, AI)
12. Defendant filed a motion for change of judge to have Judge Smith recuse himself in this
case on 6/11/2018 in accordance with KS.A. 20-311d and as now filed the motion for
change of judge with affidavit under KS.A. 20-311d(b)(c), and a motion for Writ of
Mandamus will be filed next by Defendant if the motion for change of judge with
affidavit filed by Defendant is not granted in this case.
13. Defendant filed a motion for change of judge in accordance with KS.A. 20-311e which
prevents the court from retaliating with any contempt punishment to Plaintiff that the
court might want to grant for filing the motion for change of judge and motion for
change of judge with affidavit in this case.
14. Defendant feels that Judge Richard M. Smith would be biased and prejudiced against
Defendant because Defendant previously paid a civil filing fee in case number lS-CV-
79P where Judge Richard M. Smith had to retain an attorney to file motions for him
which was a motion for sanctions and filing restrictions against her husband and
Defendant feels that the court would be biased and prejudiced against Defendant for
suing Judge Smith civilly and judge Richard M. Smith felt damaged enough in the case
to file a motion for sanctions and get it granted which has caused Defendant's husband
to have to file an (AFFIDAVIT MOTION) for every case he files now in the state of
Kansas which has been a big inconvenience, nuisuance and economic inconvenience for
Defendant and Defendant's husband since they have had to retain a private attorney
Prince Adebayo Ogemeno to represent them instead of filing the case Pro Se in the
federal case 16--cv-2108titled Kasey King v. Lori Bolton-Fleming, and Kurt Loy, and Bill
Wachter, and My Town Media, Inc. and case number 2017CV72P Kasey King v. My
Town Media, Inc., Lori Bolton Fleming, and Kurtis Loy filed in Crawford County Civil
Court
15. Defendant feels that judge Richard Smith would be biased and prejudiced against
Defendant for the civil lawsuit and civil appeal filed against Judge Smith by Defendant
and that Judge Richard Smith should recuse himself from this case under code of
judicial conduct Rule 2.7 Responsibility to Decide, and Rule 2.11(A) Disqualification due
to a conflict of interest with Defendant
16. Defendant challenges the court's jurisdiction to hear this case because Judge Richard
M. Smith had a prior relationship as a co-defendant with Chief Judge of the 11thjudicial
district A.J. Wac..hterin Eric Muathe, et a1vs. Honorable Kurtis Loy in case numbers
15CV79P and the appeal of 16-116284-A Eric Muathe, et al, vs. Honorable Kurtis Loy, et
al, from the civil case of 15CV79P and former chief judge of the 11th district received a private
aider of cease and desist in this case of 13CV32P lAfells Fargo VB. Julie Brunskill. Defendant
feels that the court would retaliate against Defendant for getting his co-defendant A.J.
Wachter a violation of the code of judicial conduct from the complaints in docket
numbers 1331 In the Matter of A.J. Wachter by Fred Grable, 1332 In the Matter of A.J.
Wachter by Thomas Walters 1334 and In the Matter of A.J. Wachter by Julie Stover-King.
(Exhibit AJ, AK, AL)
17. Defendant also challenges the court's jurisdiction because the Defendant's husband has
filed two previous civil lawsuits against the court's former co-defendant and former
judge in this case former chief judge A.J. Wachter's brother attorney Bill Wachter who
owns My Town Media with attorney Prince Adebayo Ogemeno in case number 16-cv-
2108 in Federal Court titled Kasey King v. Lori Bolton-Fleming. and Kurt Loy, and Bill
Wachter, and My Town Media, Inc. and case number 2017CV72P Kasey King v. My
Town Media, Inc., Lori Bolton Fleming. and Kurtis Loy filed in Crawford County Civil
Court. Defendant feels that the court would be biased and prejudiced against Defendant
because her husband has sued the former co-defendant of the court's brother Bill
Wachter of My town Media at Wilbert and Towner Law Firm.
18. Defendant also objects to the fact that Honorable Wachter assigned" the "motion for
/I

change of judge with affidavit" filed on 7/17/2017 to Judge Daniel D. Creitz when
according to KS.A. 20-311d(b)(c) no district judge in the 11thdistrict should be qualified
to hear the "motion for change of judge with affidavit" because all judges in the 11th
district were clients in case number 15CV79P along with judge Richard M. Smith where
the "imposed filing restrictions" were granted against James Beckley Jr., Travis Carlton,
Eric Muathe, and Defendant's husband Kasey King and Defendant feels that all the
judges that were defendants in case number 15CV79P including judge Richard M Smith
should be disqualified from hearing a case of the Defendants due to a conflict of interest
from the filing of the civil lawsuits against Richard M. Smith.
19. Defendant feels that according to KS.A. 20-311d(b)(c) that the departmental justice
should have assigned a judge to rule on the "motion for change of judge with affidavit"
which was filed on 7/17/2017 and has still not been answered that was assigned to
Judge Daniel D. Creitz by chief Judge A.J. Wachter who already recused from the case
because of a conflict of interest and therefore this entire case has not had any judge with
subject-matter jurisdiction that has signed orders :inthis case and Defendant feels the
entire case should be dismissed for lack of jurisdiction on the court
20. Defendant feels that if the chief judge of the 11thjudicial district is disqualified/ recused
from a case for a conflict of interest then the same judge should not have any subject-
matter jurisdiction to assign a case and it should have been up to the #4 Departmental
Justice Lee Johnson to assign the assignment order issued to judge Daniel Creitz.
21. Defendant also files this motion for change of judge with affidavit to have Senior Judge
Richard Smith disqualify himself in accordance with the code of judicial conduct Rule
25. The courtROA on 8/28/2017 and 9/6/2017 in this case shows that there is (NO ENTRY
ON 7(21a017 FOR MOTION TO DISMISS FOR LACK OF PROSECUTION FILED BY
DEFENDANT) but yet the court ROA in the same case dated 1/23/2018 shows on
7/21/2017 a (BACKDATED ENTRY OF MOTION TO DISMISS FOR LACK OF
PROSECUTION) which does not comply with KS.A. 60-2601(d). Defendant's motion to
dismiss for lack of prosecution was filed on 7/21/2017 but could not be heard on
9/6/2017 at that hearing because it was not even on the ROA until 1/23/2018. (Exhibit
AS, AT, AU)
26. The same reasons that Judge Oliver Lynch and Judge Ward disqualified Judges AJ.
Wachter and Janice Russell in case numbers 2012LM356P due to civil lawsuits filed
against the court are the same reasons that Richard M. Smith should recuse/ disqualify
his self from this case as well. (Exhibit AM, AO, and Exhibit AN)
27. Former Chief Judge AJ. Wachter resigned from a cease and desist order in case number
13CV32P and officially retired on 12/13/2017 but rejoined the case of State of Kansas vs.
Muriece Scholes 2017-CR-287P without a judicial assignment on 3/6/2018. Judge
Wachter was disqualified under KS.A. 20-311d and he did not follow KS.A 20-311d
change of judge procedure and Rule 2.11(A} Disqualification of code of judicial conduct
which is a ministerial act that is not entitled to any form o{judicin.l immunity. AJ. Wachter is
not a Senior Judge and should not have been able to have a (HEARING
RESCHEDULED) (PRETRIAL CONFERENCE 04/24/201810:00) and request that
motions are due 14 days prior to pretrial in case number 2017-CR-287P where Judge AJ.
Wachter is listed to the side of the court ROA as the judge in the case on 3/6/2018 after
he retired on 12/13/2017. (Exhibit AQ)
28. According to RULES RELATING TO DISTRIC COURlS 11MB STANDARDS,
STANDARDS RELATING TO JURY USE AND MANAGEMENT RULE 101 through
RULE 187 under TIME STANDARDS (4) the chiefjudge should report the reason for
delay in disposition to the Judicial Administrator when a case has been pending more
than (2) years. Defendant has not seen anywhere on the court ROA in this case where
11thdistrict chief judge Oliver Lynch has made a report with the judicial administrator in
this case even though this case has been pending for more than (5) years and has had (2)
prior judges recuse from the case who have not had any subject-matter jurisdiction to be
in the case under Rule 2.7 Responsibility To Decide and Rule 2.11(A) Disqualification of

the code of judicial conduct due to conflicts of interest. (Exhibit AR)

29. Defendant recently filed two (2) ethic complaint against Honorable Richard M. Smith on

May 14 and May 19 of 2018 with the Kansas Commission on Judicial Qualifications and

Defendant feels that Honorable Richard M. Smith would be biased and prejudiced

against Defendant and could retaliate against Defendant for the complaint that was filed

against Honorable Richard M. Smith that was dismissed by the commission on judicial

qualifications on June 18, 2018. (Exhibits AV and AW)

Defendant has included the following case law for argument and support with this

motion for change of judge with affidavit:

ARGUlvffiNTS AND AUTHORl'llES

The standard for review of rulings of disqualification of a judge are stated in Smith v.

Printup, 262 Kan. 587, 1997, at SyI. 8:

The standard to be applied to a charge of lack of impartiality is whether the charge is

grounded in facts that would create reasonable doubt concerning the Court's impartiality, not
in the mind of the Court itself, or even necessarily in the mind of the litigant filing the motion,

but rather in the mind of a reasonable person with knowledge of the circumstances.

The issue is the appearance to a "reasonable person with knowledge of all circumstances" .

Such a person might well question the ability of a Judge to be impartial under the

circumstances.

The Kansas Supreme Court noted in State v. Sawyer Case NO. 101, 624 (2013) that; there are

at least three possible substantive bases on which a Kansas litigant may argue that a judge's

recusal is required: the statutory factors listed in KS.A. 20-311d(c)(1)-(5); the Kansas Code of

Judicial Conduct, Canon 2, Rule 2.11 Disqualification, and the Due Process Gause of the Federal

Constitution and Kansas State Constitution.

According to KS.A. 60-265 and KS.A. 60-266 Crawford County District Court should

have lacked subject-matter jurisdiction to sign an ORDER in case number 13CV32P and
the Defendant challenges this courts jurisdiction to sign any "ORDERS" in this case due

to lack of subject-matter jurisdiction. A judge must be acting within hisjher

jurisdiction as to subject matter and person, to be entitled to immunity from civil

action for hisjher acts, Davis v. Burris, 51 Ariz. 220, 75 P. 2d 689 (1938). When a

judicial officer acts entirely without jurisdiction or without compliance with jurisdiction

requisites, he/ she may be held civilly liable for abuse of process even though his/her act

involved a decision made in good faith that he/ she had jurisdiction. State use of Little v.

U.S. Fidelity & Guaranty Co., 217 Miss. 576, 64 So. 2d 697. Judicial Immunity also should

not apply because Honorable Smith's duty to disqualify himself under Rule 2.11(A) is a

IIiinisterial act that is not entitled to any form of judicial immunity. "The clerk, as an

officer of the court, is obliged to comply with the rules of procedure governing his

duties. When delinquent or derelict in such performance, appropriate legal measures

are available to enforce compliance, as well as to secure redress by way of damages

incurred as a result of his failure to perform those duties." Ward v. Fountain, 122 So. 2d

209,210 (Fla. 1st DCA 1960) (emphasis added). Honorable Richard Smith is an officer of

the court as well and therefore no immunity should apply to Honorable Smith just like

the clerk of the court. In Cook v. City of Topeka, 654 P.2d 953 (Kan. 1982), the Supreme

Court of Kansas analyzed the applicability of judicial immunity to the actions of the

clerk of court, and concluded that purely ministerial actions by the Clerk of Courts

undertaken pursuant to statutory directive are not subject to the doctrine of judicial

immunity. At its core, the court's analysis involves a determination as to whether the

clerk was engaged in a judicial, quasi-judicial, or ministerial task. See id. At 957. If the

complained of actions of the clerk are ministerial, judicial immunity does not apply. See

id. At 958.
One test used to determine whether a clerk of a court is engaged in a judicial,
quasi-judicial or ministerial task is to see if a statute imposes a duty upon the
clerk to act in a certain way leaving the clerk no discretion. In Am.Jur.2d it is
stated while "there is some conflict as to the judicial or ministerial nature of
certain specific duties of a clerk of court; ... his duty is purely ministerial when it
is prescribed by statute." 15A Am.Jur.2d, Clerks of Court § 21, p. 156 (emphasis
supplied).
Cook v. City of Topeka, 654 P.2d 953, 957 (Kan. 1982). A Clerk may not escape liability for
illegal or improper performance of a ministerial task imposed by statute. Id. At 958.

WHEREFORE, Defendant prays for Judge Richard M. Smith to disqualify himself in

accordance with K S.A. 20-311d, Rule 2,7 Responsibility To Decide, and Rule 2.11(A)

Disqualification of the code of judicial conduct from making any ruling on this case in

the interest of impartiality and fairness and also for judicial economy this case should be

assigned to another Judge that has never been sued dvilly by Defendant and does not

have any prior conflicts of interest with Defendant by the Department #4' s

i/
Julie Stover-King

303 Jefferson

Frontenac, KS 66763 j
TAMARA BAKER
My Appointment Expires
December 20. 20 a

Further Affiant s ys not. .

J
~f{fJ~:
ie Stover-King, Affiant b
/
I hereby certify that on this '2nctday of July, 2018, AD. a woman appeared with
Proper identification, to attest and affirm that she is the woman executing the
foregoing AFFIDAVIT by her hand.

I, therefore, set forth my hand and seal in affirmation thereof of the execution
thereof.

~p/L{~
NOTARYPUBLIC Date

My commission expires on Izho/rcz TAMARA BAKER


7 I My Appointment Expires
December 20, 2019

NOTICE OF HEARING

This motion for change of judge with affidavit will be set for hearing at the time of DO p. If) .
on the date of July 6, 2018 at the next final pre-trial conference.

CERTIFICATE OF SERVICE
I
I certify that on July3f!!:.., 2018, I mailed the foregoing Motion For Change of Judge with
Affidavit to Petitioner's attorney via first class mail at the following addresses:

Linda Tarpley

Shapiro & Kreisman, LLC

4220 Shawnee Mission Parkway-Suite 418B

Fairway, Kansas 66205


'-J)D / _? C ~/1tf;:>

Ex:"'-)o"+
15 JllL 22 P 1 :41 IA fA p cte:>e
IN THE DISTRICT COURT O~:~~~~)~~b
~ ~~lJ' ~CO'UNTTY, i<XAINSAS
l,. iJ1J""1'i I .

BY . _.

CLASSACTION PETITION
FOR

INJUNCTIVE RELIEF
AGAINST THE FOLLOWING DEFENDANT JUDGI,E>;

LORI FLEMING, A. J. WACHTER, KURTIS LOY, ROBERT FLEMING, OLlVtER LYNCH, JEFFRY JACK,

-
JANICE O. RUSSELL, RICHARD M. SMITH, JOHN E. SANDERS.

OTHER DEFENDANTS INCLUDEj KANSAS COMMISSION ON JUDICIAL Q'lJALIFICATIONS PANEL


"All AND liB", STANTON A. HAZLETT, MICHAEL GAYOSO, JR., TiM GR!iLilOT, AND KANSAS
ATTORNEY GENERAL DEREKSCHMIDT.

Case. No. _

K.S.A. Chapter 60
CLASSACTION PETITION AGAINST CORPORATED AND
UNINCORPORATED ASSOCIATIONS FOR INJUNCTIVE AND DECLARATORY
RELIEF ACCORDANCE WITH K.S.A. 60-223(a)(b)(c)(d)(e), K.S.A. 60-223b.,
K.S.A. 60-257, AND K.S.A 60-901.

JURY TRIAL DEMANDED

LIST OF PLAINTIFFS; ALL ATTACHED GRAND JURY PETITIONERS

LIST OF DEFENDANTS;
JUDGE KURTIS I. LOY

JUDGE ANDREW J. WACHTER

JUDGE ROBERT J. FLEMING

JUDGE LORI B. FLEMING

JUDGE JEFFRY l. JACK

JUDGE OLIVER KENT LYNCH

JUDGE JANICE D. RUSSELL

')( JUDGE RICHARD M. SMITH

JUDGE JOHN E. SANDERS

KANSAS COMMISSION ON JUDICIAL QUALIFICATIONS

STANTON A. HAZLETT

MICHAELGAYOSO, JR.

TIM GRILLOT

KANSAS ATTORNEY GENERAL DEREK SCHMIDT

Page 10flS
IN THE DISTRICT COt:RT OF eRA WFORD COl"NTY, KAt"iSAS

ERIC l\l. ML'ATHE, et al.,


F~!1ErJ
Plaintiff, )
)
VS. '16 JUri)5 ~\1(J:'i* .:\0. 15-CV-79P
)
HONOR!\BLE KURTIS LOY, et 01., J_.~...
Ch~~~)f6~D:
;.":'.'
Defendan~..·
.; r __ ._-.-,
) __ -

JOURl"iAL E~TRY DIS:M!SSISG CASE


AND
Il\lPOSING FILING RESTRICTIONS

Now on this 18th day of April, 2016, this matter comes before the Court on all pending

motions.

Defendants Kurtis Loy, Andrew J. Wachter, Robert J. Fleming, Lori Fleming, Jeffry L.

Jack, Oliver Kent Lynch (District Coun Judges for the Eleventh Judicial District), Janice D.

Russell, Richard M. Smith, John E. Sanders (Senior District Court Judges), Stanton A Hazlett

(Disciplinary Administrat-or), Tim Grillot (assigned discipline complaint investigator), and

Kansas Attorney General Derek Schmidt appear by and through counsel Stephen Phillips,

Assistant Attorney General,

Defendants Kansas Commission on Judicial Qualifications Panel "A" and Panel "B"

appear by and through Carey Barney, Assistant Attorney General.

Defendant Michael Gayoso appears by and through James Emerson, Crawford County

Counselor,

Plaintiffs do not appear. The Court finds that Plaintiffs were gi••..
en adequate and proper

notice ofthis hearing, with notice served February 24, 2016. with said Notice stating that the
from filing further cases. Iherefore, further sanctions are warranted and are hereby imposed as

follows against Pro Se Litigants (Muathe, King, Beckley, and Carlton):

1. With the sole exception of a Notice of Appeal in this matter, Pro Se


Litigants, individually and collectively, are enjoined and may not,
proceeding pro se, file any pleading in this case or any new cases,
including small claims and limited action cases, in any district court of
the State of Kansas without express authorization of the undersigned
Judge as to filings in this ease, the Chief Judge of the district where a new
case is to be filed, or such other Judge as shall be legally designated to
review the filings. New suits by Pro Se Litigants which are signed and
brought by a lawyer licensed to practice in this state or admitted pro hac
vice are not subject to this restriction.

2. Should Pro Se Litigants, proceedingpro se, seek to file further pleadings


in this case other than a Notice of Appeal, Pro Se Litigants shall submit
the pleadings to this Judge or such other Judge as may be legally
designated for review, and the clerk shall not file the pleadings unless and
until this Judge or designated Judge reviews them and certifies that they
are not frivolous and repetitive. Should further pleadings be filed in this
case, defense counsel shall not respond to them except upon order of the
court.

3. Should Pro Se Litigants, proceeding pro se indhidually collectively,


Of
seek to file any new case, including small claims or limited actions cases,
in any district court in this state, Pro Se Litigants must file an application
for leave to file a petition. The application shall be delivered to the Chief
Judge of the judicial district or such judge as shall be legally designated
to conduct such review and shall include:

a, a copy of this order or any subsequent orders related to filing


restrictions,
b. a copy of the proposed petition;
c. a notarized affidavit certifying that the claims have not been
previously asserted, the claims are not frivolous or made in
bad faith, and the claims comply with all civil and appellate
procedures and rules; and
d. a current list of all lawsuits currently pending or previously
filed with the court or any other Kansas court, including a list
of all parties in each case, a statement of the claims in each
case, and disposition of same if possible.

The Chief Judge or Designated Judge will then determine if the


petition or pleading is lacking in merit, is duplicative, or is
frivolous. If the petition or pleading is found to comply with the
above requirements, Pro Se Litigants will be granted leave to file
the petition or pJeading. A failure to comply with the rules and
orders of this court can subject them to sanctions and/or
punishment for contempt. Further, no party shan be required to
respond to anything filed by Pro Se Litigants unless a court of
competent jurisdiction has approved the petition or pleading for
filing and ordered parties to respond, or unless the petition or
pleading is filed by a Kansas-licensed attorney on Pro Se Litigants'
behalf.

4. The filing restrictions become effective as of tbe date Defendants filed tbis
Motion for Sanctions on September 28, 2015. All pro se filings and cases
submitted by Pro Se Litigants after the date the Motion for Sanctions was
filed will be subject to court screening.

5. The Clerk of tbe Crawford Count)' District Court is directed to serif a


copy of this order on the Chief .ludge of each of the 31 Judicial Districts
in Kansas.

Plaintiffs' Motion for Sanctions against Defendants is denied. All other motions pending

ill the case are moot.

IT IS SO ORDERED.
July 4,2015

Kansas Commission on Judicial Qualifications

301 S.W. Tenth Avenue

Topeka Ks 66612

Case Number 2015MR2P

COMPLAINT AGAINST RICHARD M. SMITH of Linn County District

Court, P.O. Box 350, Mound City, Ks 66056

I would like to make a complaint against Richard M. Smith for failing to foiiow Supreme Court

rule 6018 Relating To Judicial Conduct Canon 3. Rule 3.15(8) (2013 Kan. Ct. R Annot 748)

because he did not file his -Judicial Financial Disclosure Report" for 2013 until May 13, 2014
and he did not fill out his 2014 "Judicial Financial Disclosure Report" until May 19, 2015 which
both vioiate RUie 3.15(B) of Rules Relating To Judicial conduct. According to Canon 3 Rule

3.15(8) a judge is supposed to have his financial disclosure report filled out by April 15 of every

calendar year and his failure to file his 2013 and 2014 financial disclosure reports on time is a
violation of The Code of Judicial Conduct. Rule 3.15(8) says "A judge shall report annually the

information listed above in (A)(1) through (7) on a form provided by the Commission on Judicial

Quaiifications. The judge's report for the preceding calendar year shall be filed as public

document in the office of the Clerk of the Appellate courts on or before April 15 of each year.

He also violated Rule 3.15(A)(6) because his 2014 financial disclosure report fails to list his

position that he holds at "Mound City Christian Church 212 Spruce Mound City Ks, 66056,
Elder" when his 2013 financial disclosure report shows that he was the "Trustee" at Mound City

Christi~n Church and the people need to know if he still holds this position as "Trustee" and his
failure to list his position is a violation of The Code of Judicial Conduct. The fact that he did not
file his financial disclosure report until after April 15, 2015 which is the last day to file your taxes
looks like he's hiding economic information which is a violation of the code of judicial conduct.

On page 29 of The Examples of Conduct found To Be Improper it states that "a judge was

informally advised that payment of taxes is a legal obligation for which judges are responsible".

I also feel that since his financial disclosure report was not filled out by April 15, 2015 and that

he did not have "SUBJECT MA ITER JURISDICTION" to hear the Grand Jury Petition in case

number 2015MR2P. It also would seem to be the exact same thing that ethic advisory opinion
shows as an example in 1997 JE-77 which says "Judge may serve as elder of church as long as judge

does not solicit funds, Canon 4C(4)(b)," How does this not relate to Judge Richard Smith filing on May
13, 2014 on his financial disclosure report that he is with the "business/organization/entity as Mound
City Christian Church where he holds the position as "Trustee". The first time he mentions this position
with the church is on his calendar year 2012 financial disclosure report that he filed on time on April 8,
2013 and mentions the position as "Trustee" which is a violation because he collects funds for the
church. This should violate Rule 3.12 Compensation for Extrajudicial Activities and it should also violate
r(l} where religious
Rule 3.14 Reimbursement of Expenses and Waivers of Fees or Charges COMMn. ••.
and charitable organizations are mentioned. Since he failed to mention his position as trustee on the
2014 financial disclosure he might have failed to properly show expenses since he did not file these on
time by April 15, 2015 which was tax day. This also violates Rule 3.15{A)(1}(2){3)(5)(6)(B) Reporting
Requirements

It would also seem to be a violation of the ethic code that he is with "Linn County Community
Foundation" as a Board member/Secretary and he is also with the Kansas Sentencing Commission where
he holds the position of Chairman/Board Member. He fails to mention either one of these two (2) board
member positions on his financial disclosure report for calendar year 2014 that he did not file in time on
May 19, 2015. Judge Smith first mentions the positions with Linn County Community Foundation and
Kansas Sentencing Commission on his calendar year 2010 financial disclosure report that he did file on
time on April 11, 2011. He also files the same positions on his calendar year 2011 financial disclosure
report that he filed on time on January 30, 2012. This should violate Rule 3.12 Compensation for
ElI.1:rajudicial Activities and Rule 3.15(A)(1){2}(3)(S)(6)(B) Reporting Requirements for these 2

organizations as well. it also WOuld Seem to be a violation of Canon 5A{2} because the page Examples

of Conduct found To Be Improper says that "A judge was found to have violated Canon 5A(2) by

filing for a position on the school board while holding the position of judge. The same page

shows another example where a judge was informally advised that service on a board with

judicial referrals to that board was inappropriate because the judge's impartiality could have

been called into question. This would seem to be the same thing as "linn County Community

Foundation" as a Board member/Secretary and also with the Kansas Sentencing Commission where he
holds the position of Chairman/Board Member. This would also seem to be the same thing as JE
,
Opinion 19951£-56 which says 'Full-time municipal court judge serving as a member of the local board
of education. Canon 5A(2). JE Opinion 1996 JE-70 says "District Judge may not serve on police
department community advisory board". JEOpinion 1997 JE-73 says "Judge may not serve as trustee for
community organization which aims to improve qualify of life for children and youth. Canon 4(A)(1),
4C(4), another JEOpinion is 1999 JE-90 which says "Newly appointed judge may complete a term on a
local school board; better practice of voluntary resignation suggested", JE Opinion 2001 JE-104 says "A
district Judge may serve on the board of directors of the local United Way but should not solicit funds or
use his/her office for fundralsing purposes. Canon 4C(4), In 2007 JE-152 says "A judge may serve on an
Alumni association Board of Directors so long as he does not solicit funds or offer legal advice. Canon
4C(4) and Canon 4G. See JE-77, 104, and 134. In 2007 JE-154 says "A judge may serve on the Board of
Trustees of the Kansas Bar Foundation so long as he does not solicit funds or offer legal advice. Canon
4C(4) and Canon 4G. Je-77, 104, 134, and 152. It seems that Judge Smith violated these opinions as
well and should be reprimanded for his violations of the code' of judicial conduct.

Please reprimand Judge.Smith for his failure to comply with Judicial Financial Disclosure

Reporting which is open to the public and that is why it needs to be filled out correctly in case

there are any violations of Rule 2.11 (A) Conflict of Interest He also fails to mention on his

financial disclosure report if he is a municipal, full-time, or part-time judge. He also fails to


mention .ifhe is a Senior, Hearing Officer, or Pro-Tempore Judge on his Calendar Year 2014
report and this should be a violation of Rule 3.15(8) as well since it is not properly filled out.

P.S. It seems Judge Smith has a problem complying with Rule 3.15(8) because it Seems he

also violated Rule 3.15(8) in the years of 1999 on June 17, 1999, in 1996 on May 20, 1996,

and 2002 on May 14, 2002.

Very truly yours,

Kasey King

PO Box 101

Opolis Kansas 66760


~tate of kansas

~-
QL:ommission on 3Jubtnal ~uaIifi(ation5
KANSAS JUDICIAL CENTER
301 SW TENTH AVE., ROOM 374
TOPEKA, KANSAS 66612
785-296-2913
judicialquaI@kscourts.org

December 22,2015
MEMBERS OF
PANEL A

Michael King
CHAIR: P. O. Box 101
Mary B. Thrower
Opolis, Kansas 66760
Judge Member

VICE-CHAIR: Re: Your complaint against District Judge Kurtis 1. Loy, Chief Judge A. 1.
Wachter, District Judge Lori A. Bolton Fleming, District Judge Robert 1.
Fleming, District Judge JefiTy L. Jack, District Judge Oliver K. Lynch,
Nancy S. Anstaett
~r~'<~':=l1~~~~~Sim:tli, and Senior Judge John E. Sanders
Lawyer Member
Dear Mr. King: ,
James S. Cooper
Non-Lawyer Member The Commission met December 4, 2015, at which time the above-captioned
complaint was listed on the meeting agenda. The matter was, however, continued due
to a lack of quorum and will be placed on the Commission's February 5, 20i6, meeting
agenda.
Norman R. Kelly
Lawyer Member Thank you for your continuing patience as the Commission does its work.
Rep. Valdenia C. Winn
Lay Member
Sincerely,

SECRETARY:
Heather L. Smith
Heather L. Smith,
Secretary

mm
~-
Qi:ommission on 31ubicial ceuari-fications
KANSAS JUDICIAL CENTER
301 SWTENTH AVE., ROOM 374
TOPEKA, KANSAS 66612
785-296-2913
CHAIR: judiciaJqual@kscouTts.org
Mary B. Thrower
Judge Member

VICE-CHAIR: •
November 23,2015
Nicholas M. St. Peter
Judge- Member

Nancy S. Anstaett Kasey King


Lawyer Member
P. O. Box 101
......
Brenda M. Cameron Opolis, Kansas .667.60 ...:,..; ..".
~'" ~# •.;.., •• -" -

Judge Member
Re: Your complaint against District Judge Robert W. Fairchild,
James S. Cooper
Non-Lawyer Member District Judge Jeffry L. Jack, District Judge Kurtis I. Loy,
Chief Judge A. J. Wachter, District Judge Lori A. Bolton Fleming,
Dr. Mary E. Davidson DistrictJudge Robert J. Fleming, District Judge Oliver K. Lynch,
Non-Lawyer Member
Senior Judge Janice D. Russell, Senior Judge Richard M. Smith, and
RobertW. Fairchild Senior Judge John E. Sanders
Judge Member
Dear Mr. King:
Allen G. Glendenning
Lawyer Member
The Commission on Judicial Qualificatio~$ considers and investigates
Larry D. Hendricks complaints of alleged unethical conduct of state court judges under the Code of
Judge Member Judicial Conduct. .
Norman R. Kelly
Lawyer Member The above-captioned complaint will be referred to the Commission and will
be placed on the Commission's December 4,2015, meeting agenda.
David J. Kipg
Judge Member
The Commission does not have jurisdiction over attorneys. If you wish to
Susan LYIin file a complaint against an attorney, you will need to contact the.Office of Disciplinary
Non-Lawyer Member Administrator. Enclosed is a brochure regarding coniplaints abeut lawyer services.
Diane H. Sorensen
Lawyer Member Sincerely,

Rep. Valdenia C. Winn


/ ;{tZlkt /Q
i
Norl1Lawyer Member

HeatherL.Smith, '
SECRETARY: Secretary
Heather L. Smith
mm
••

~tate of ~an~a5 ifF


~-
q:ommi~sion on j/ubicial ~ualifi(ation~
K-\.,""!SASJUDICIAL CENTER
301 SW TENTH AVE., ROOM 374
TOPEKA, KANSAS 66612
785-296-2913
judicialqual@kscourts.org

MEMBERS OF December 22,2015


PANEL A

CHAIR: Kasey King


Mary B. Thrower
P. O. Box 101
Judge Member
Opolis, Kansas 66760
VICE-CHAIR:
Re: Your complaint against District Judge Kurtis 1. Loy, Chief Judge A. J.
Wachter, District Judge Lori A. Bolton Fleming, District Judge Robert 1.
Fleming, District Judge Jeffry L. Jack, District Judge Oliver K. Lynch,
Nancy S. Anstaett
Lawyer Member '" .s.~.1Ji.and Senior Judge John E. Sanders
James S. Cooper Dear Mr. King:
Non-Lawyer Member
The Commission met December 4, 2015, at which time the above-captioned
tAri e!I~¥11~,.?t complaint was listed on the meeting agenda. The matter was, however, continued due
to a lack of quorum and will be placed on the Commission's February 5, 2016, meeting
Norman R. Kelly agenda.
Lawyer Member
Thank you for your continuing patience as the Commission does its work.
Rep. Valdenia C. Winn
Lay Member
Sincerely,

SECRETARY:
HeatherL. Smith
Heather L. Smith,
Secretary

mm
~tate of itansas

~-
Q:ommission on ~ubicia[ ~ualifiration5
KA"lSAS JUDICIAL CENTER
301 SW TENTH AVE., ROOM 374
TOPEKA, KANSAS 66612
785-296-2913
judicialquaI@kscourts.org

December 22, 2015

MEMBERS OF
PANEL A Kasey King
P. O. Box 101
Opolis, Kansas 66760
CHAIR:
Mary B. Thrower
Re: Your complaint against District Judge Robert W. Fairchild,
Judge Member
District Judge Jeffry 1. Jack, District Judge Kurtis 1. Loy,
Chief Judge A. J. Wachter, District Judge Lori A. Bolton Fleming,
District Judge Robert J. Fleming, District Judge Oliver K. Lynch,
Senior Judge Janice D. Russell" " , and
Senior Judge John E. Sanders
Nancy S. Anstaett
Lawyer Member
Dear Mr. King:
James S. Cooper
Non-Lawyer Member The Commission met December 4, 2015, at which time the above-captioned
complaint was listed on the meeting agenda. The matter was, however, continued due
to a lack of quorum and will be placed on the Commission's February 5, 2016, meeting
agenda.
Norman R. KeJly
Lawyer Member Thank you for your continuing patience as the Commission does its work.
Rep. Valdenia C. Winn
Lay Member
Sincerely,

SECRETARY:
Heather L. Smith
Heather 1. Smith,
Secretary

mm
~tate of 1kall~ag
~

~
([Olnnti~~ion on 31ubicial~tullifiratiou$
J
K \1\;S,\$ UDiCl. \1. CENTEH
301 SW TENTll AVE., ROOM 374
TOPEK.\, K\?\s,\s 66612
785-296-2913
judicialqual@kscourts,org

MEMBERS OF .Febrmo:y 23,.2016


PANEL A

CIWR:
Kasey King
Mary B. Thrower
Judge Member
P. O. Box 101
Opolis, Kansas 66760
VICE-CHAIR:
Brenda M.Cameoon
Re: Your complaint against District J.-ROOert.W. Fairchild,
]iKIge r'\'fember
District Judge Jeffry L. Jack, District Judge Kurtis I. Loy,
Nancy S. Ansraerr Chief Judge A. J. Wachter, District Judge Lori A. Bolton Fleming,
Lawver Member District Judge Robert J. Fleming, District Judge Oliver K. Lynch,
Senior Judge Janice D. Russell, Senior Judge Richard M. Smith, and
James S. Cooper
Senior Judge John E. Sanders
Non-Lawyer Member

R'ObettW.·~ Dear Mr. King:


.T udge Member
The Commission met February 5, 2016, at which time the above-captioned
Norman R. Kelly
Lawyer Member
complaint was listed on the meeting agenda. The matter was, however, continued due
to alack of quorum as Judge Cameron and Judge Fairchild recused. The matter will
Rep. Valdenia C. Winn be placed on the Commission's April 1,2016, meeting agenda.
Lay Member
Thank you for your continued patience as the Commission does its work,
ACTING SECRETARY:
Douglas T Shima Cordially,

Douglas 1:. Shima,


:J~ ~
Acting S cretary

mm
j)tate of kansa~


~Olumis1tion on J/ubitiaI ~uaItftcation9'
K;\NSi\S JUDIC!.\!. CENTER
301 SW TENTH -,WE., Rom.! 374
TOJ>EK,\, K,\NSAS 66612
785-296-2913
judicialqual@kscourts.org

MEMBERS OF
PANEL A February 23, 2016

CHAIR:
Mary B. Thrower
Judge Member
Kasey King
P. O. Box 101
VICE-CHAIR: Opolis, Kansas 66760
Brenda M. Cameron
Judge Member
Re: Your complaint against District Judge Kurtis I. Loy, Chief Judge A. J.
Nancy S.. -\nstaett Wachter, District Judge Lori A. Bolton Fleming, District Judge Robert J.
Member
LZ"\I.o)"e! Fleming, District Judge Jeffry L. Jack, District Judge Oliver K. Lynch,
Senior Judge Richard M. Smith, and Senior Judge John E. Sanders
James S. Cooper
Non-Lawyer Member
Dear Mr. King:
Roberr~I.Farrchild
Judge Member The Commission met February 5, 2016, at which time the above-captioned
complaint was listed on the meeting agenda. The matter was, however, continued due
Norman R. Kelly
Lawyer Member
to a lack of quorum as Judge Cameron and Judge Fairchild recused. The matter will be
placed on the Commission's April 1, 2016, meeting agenda.
Rep. Yalderua C. Winn
Lay Member Thank. you for your continued patience as the Commission does its work.

ACTING SECRETARY: Cordially,


Douglas T. Shima

nun
~-
([onnni~5ion on 1/ttbitiaI ~ualificationg'
KAXSAS JcmCtAL CENTER
301 SWTENTHAVE.,RoOM374
TOPEKA, KAr'lSAS 66612
785·296-2913
judiciaIquaI@kscourts,org

MEMBERS OF November 13, 2017


PANEL A

Fred Grable
CHAIR:
Brenda 2\.£.Cameron
P. O. Box 101
Judge ::-'Iember Opolis, Kansas 66760

VICE-CHAIR: Re: Docket No. 1331, In the Matter of A. 1. Wachter


James S. Cooper
Non-Lawyer Member
Dear Mr. Grable:
Terrence J. Campbell
Lawyer :'Iember The Commission met October 6, 2017, at which time the above-captioned
complaint was considered. It was the decision of the Commission to issue a private
Robert \"'{!. Fairchild
order of cease and desist regarding delay.
Judge i\Iember

).iorman R Kelly The Commission's findings and conclusions are proposed findings and
Lawyer Member conclusions. Judge Wachter, in accordance with Supreme Court Rule 61 I, has 20 days
after service of the order to either accept or refuse the order. If accepted, they become
.\Iary B. Thrower
Judge .\lember
the Commission's findings and conclusions. If rejected, they will have no effect and a
~ otice of Formal Proceedings will be filed.
Rep. \ "aldenia C. WUlll
.:\"on-Lawyer Xlember Once a response to the proposed cease and desist order has been received from
Judge Wachter, you will be notified. Thank you for your continuing patience as the
SECRETARY:
Commission does its work,
Douglas T. Shima
Cordially,

~~/.~
Secretary
AK
~-
~ommtg5ion on .}ttbiciaI @ualificationg
KANSAS JUDICIAL CE~TER
301 SW TENTH A VE., ROOM 374
TOPEKA, KANSAS 66612
785-296-2913
judicialqual@kscourts.org

MEMBERS OF Xovember 13, 2017


PANEL A

Thomas Walters
CHAIR:
Brenda :\1. Cameron
213 E. Carlton
Judge ~Iember Pittsburg, Kansas 66762

VICE-CHAIR: Re: Docket No. 1332, In the Matter of A. J. Wachter


James s. Cooper
Non-Lawyer Member
Dear Mr. Walters:
Terrence J. Campbell
Lawyer Member The Commission met October 6,
considered.
Robert \V Fairchild
Judge :\IetnbeJ:

~ annan R. Kelly The Commission' s findings and conclusions are proposed findings and
Lawyer :"Iember conclusions. Judge Wachter, in accordance with Supreme Court Rule 611, has 20 days
after service of the order to either accept or refuse the order. If accepted, they become
~larr B. Thrower
Judge :'IIember
the Commission's findings and conclusions. If rejected, they will have no effect and a
Notice of FormalProceedings will be filed.
Rep. Valdenia C. \X.'1pn
~on-Lawyer Member Once a response to the proposed cease and desist order has been received from
Judge Wachter, you will be notified. Thank you for your continuing patience as the
SECRETARY:
Commission does its work.
Douglas T. Shima
Cordially,

~~7~
Secretary

mm
~tate of li{ansas
14L
~-
(!Commission on jf ubitial ~ualifirations
KANSAS JUDICIAL CENTER
301 SWTENTHAvE., ROOM 374
TOPEKA, KANSAS 66612
785-296-2913
judicialqual@kscourts.org

MEMBERS OF November 28, 2017


PANEL A

Julie Stover-King
CHAIR:
303 S. Jefferson
Brenda M. Cameron
Judge Member Frontenac, Kansas 66763

VICE-CHAIR: Re: Docket No. 1334, In the Matter of A. J. Wachter


James S. Cooper
Non-Lawyer Member
Dear Ms. Stover-King:
Terrence J.
Campbell
Lawyer Member Pursuant to my letter to you dated November 13,2017, it was the Commission's
decision on October 6,2017, to issue a private order of cease and desist regarding delay.
Robert W. Fairchild
Please be advised Judge Wachter accepted the Commission's order and same was filed
Judge Member
on November 27, 2017.
Norman R. Kelly
Lawyer Member The Commission's file is now closed in this matter.
Mary B. Thrower
Cordially, . ~
Judge Member
~ 1'1) 'v?~
Rep. Valdenia C. Wino ~~/'!)~---
Non-Lawyer Member Douglas 11. Shima, U
Secretary
SECRETARY;
Douglas T. Shima rom
[. THE DISTRICT COURT OF CRA \VFOl<.D COUNTY, K .c\.~)AS

Witmington Trust, National Association, )


as Successor Trustee to Citibank. N.A., )
CIS Trustee for Structured Asset Mortgage )
Investments 11Inc. Bear Stearns ARI',;J .,.. [ '}J'/lA
Trust, Mortgage Pass-Through Certificate'}?
DEe i1 '~)'~'-.
Series 2007-4J )
rPltJ'fnt(ff/: c.'!:.,') ..
vs. t:h.\VF \. r·;.} L> . ')Case No. 14CV86P
~;
~
----- -J~"
Eric u. Muathe, GB Home Equity, LLe, )
Cittbdortgage, Inc., Mortgage Electronic )
Registration System, Inc. as nominee for )
GB Home Equity, LLe, Unknown Spouse of )
Eric Mauthe, Unknown Occupant I )

nofQmlm'lts. )

ORDER

On June 1ih, 2015, the Chief Justice of the Kansas Supreme Court assigned the
Honorable Richard Smith, a Kansas Senior Judge, to hear this case. That assignment was
l!2ssitated because the Honorable Mark A. Ward sustained defendant's motion to disqualify
the assigned judge, the Honorable Janice Russell by Order dated June 5th, 2015. The case was
initially assigned to myself as a routine assignment, but Judge Kent Lynch disqualified me based
on defendant's K.S.A. 20-311d(b) motion, so the case was assigned to Judge Lynch, who -
recused himself after handling the case from September 2014 to December 2014. The case was
then assigned to the Honorable Janice Russell.

On July 241h, 2015, defendant filed a motion to disqualify Judge Richard Smith.
Judge Smith considered defendant's motion to disqualify him as a K.S.A. 20~311d(a)
motion (even though defendant did not follow the required procedure) and issued an order on
July zt", 2015 refusing to recuse himself.

The above caption recently came to this court's attention, as Chief Judge of the 11th
Judicial District, on defend;rt'SMotion for Disqualification of Judge Smith supported by
defendant's affidavit filed At;&ust 10th, 2015. Because Judge Lynch disqualliied me from this
case in September 0[2014, even though I am Chief Judge of the 11Ih Judicial District, ~
reluctant to rule on the defendant's current pending 20·311d(b) motion to disqualify Judge
Smith. Accordingly, pursuant to 20-311 d(b) I refer defendant's motion and affidavit to the
Honorable Daniel Creitz, Chief Judge of the 31st Judicial District for determination of the legal
sufficiency ~f detenaant's affidavit.
AJ. Wachter
District Judge

Copy to:

Hon Daniel D. Creitz Charles Bush Eric Muathe


Chief Judge Attorney at Law 1410 Bitner Terr.
1 North Washington Ave. Fairway Corporate Center Pittsburg, KS 66762
Iola, KS 66749 4210 Shawnee Mission Pkwy.,
Ste.203A
Fairway, KS 66205

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document was
deposited in the United States Mail, postage prepaid and properly addressed to the above party or
partiesonthe " dayof L>Qcelm\Qg 1<_,2015.
rILED
1.1 SEP 2l All:04
IN THE DlSmCT COURT OF9f4~~WY' KANSAS·
smINGAT'~UHr'(
ty ~_..._ .
FlFm mIRJ) BANK. )
Plaintiff, )
)
VlI. ) Case No. 2012-LM-356 P
)
)
ERIC M. WArnE, )
Defendant. )
)

ORDER

The defendant herein filed a motion for recusal and affidavit in support theseof

seeking recusal oftbe Hon. A. J. Wachter. The case has been transferred to this court for

consideration.

At the heart of the defendant's request is the earlier :tiling of a s.maUclaims suit

with this defendant 85 plainlitf and Judge Wachter as defendant, being case number 2010

SC 139P. His lessl basis derives nom the l'eQusal procedure set out in K.S.A. 20-31 leL

While he cites sev~raI of the "Rules Relating to Judicial Conduct" being Rules 1.1. 2.1,

and 2.3 wh:ch ere within Supt¥!JllC Court Rule 6OlB, the more reievant role is 2.11 (A):
~
,)f A judge shall disquafi!y himself or ikJrself in any prec:eding in wl!!ch !'he
7f judge's imparJiali~might reasonably be questioned •..
As Judge Wacllter indicated on the record in the proceedinp of June 25, 2013,

herein. he is satisfied that he can put aside any prejudice he may feel for the defendant
[)<h\~\¥b
fo.,e ~

and decide the case impanially. He demoDstrates the same in the proceedings transcribed

by patiently hearing out the dctendant and aUowing the defendant to make any and all

aIgUments he may have had. ludge Wachter then 18ir1y applied the law and rendered

appropriate rulings.

The standard of review orndings OD disquaJificaUon of ajudge are stated in Smllh

v. Printup. 262 Kan. 587. 1997, at Syt 8:

I The standard to be applied to a charge of Jaclc of impartiality is whether


i
I
the charge is grounded in facts that would create reasonable doubt
concerning the c:ourtts impartiality, not in the mind of the court itseI( or
I even necessarily in the mind of the Hupn.t filing the JOOIion,lIut rather in
I the mind of a reasonable person with knowledge of the cin:umstaDees.

Thill court is satisfied that ii ju.~t ef Judge Wachter's experience CWl easily put

aside any prejudice he may have against the defendant and decide the case only on the

law and the evidence. This court is satisfied that it could do the same Wlder similar

circumstances. This court is satisfied that most jf not ail lawyers iio'ho practice before

Judge Wachter would be .atisfied of the SIQJle.

However. Judge Wachter's or this court's satist'adion tJmt be could rule

impartially does not resoive the case. The issue is the appearm:e to a "reasonable

person with knowledge of all of the circums1aDces". Such a person might weJl question

the ability of a judge to be impartial under the circumstances.