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IN THE UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS

SHONA BANDA,
Plaintiff
v.
THE STATE OF KANSAS; KANSAS
DEPARTMENT FOR CHILDREN AND
FAMILIES; PHYLLIS GILMORE, in her
capacity as Secretary of the Kansas
Department for Children and Families; SAM
BROWNBACK, in his capacity as Governor
of the State of Kansas; GARDEN CITY
POLICE DEPARTMENT; JAMES R.
HAWKINS, in his capacity as Chief of the
Garden City, KS police department; TYLER
STUBENHOFFER; GARDEN CITY USD
437; and DOES 1 to 10,
Defendants

COMPLAINT FOR CIVIL RIGHTS


VIOLATIONS (42 U.S.C. 1983),
DECLARATORY RELIEF AND
INJUNCTIVE RELIEF

COMES NOW Plaintiff SHONA BANDA and alleges as follows:


1.

The claims raised by the Plaintiff in this Complaint are based on

violations of the United States Constitution and the laws of the United States.
This Court has federal question jurisdiction (28 U.S.C. 1331, 1343(a), 2201 and

2202). Venue is proper because this is the district in which all of the events giving
rise to the Plaintiffs claims occurred (28 U.S.C. 1391[b]).
PARTIES
2.

Plaintiff SHONA BANDA (BANDA) is an individual, citizen of

the United States and resident of the State of Kansas.


3.

Defendant STATE OF KANSAS (KANSAS) is a state of the

United States of America admitted to the Union on January 29, 1861.


4.

Defendant SAM BROWNBACK is the elected Governor of

KANSAS and is sued in his capacity as such.


5.

Defendant KANSAS DEPARTMENT OF CHILDREN AND

FAMILIES (DEPARTMENT) is an agency of KANSAS.


6.

Defendant PHYLLIS GILMORE is the duly appointed Secretary of

DEPARTMENT and is sued in her capacity as such.


7.

Defendant GARDEN CITY POLICE DEPARTMENT (GCPD)

is a municipal agency operating as part of incorporated Garden City, Kansas.


8.

Defendant JAMES R. HAWKINS is the duly appointed Chief of the

GCPD and is sued in his capacity as such.


9.

Defendant GARDEN CITY USD 457 (SCHOOL DISTRICT) is

a public school district and a unit of Defendant KANSAS.


10.

Defendant TYLER STUBENHOFFER is an employee of SCHOOL

DISTRICT and is sued in his capacity as such and individually.


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11.

Plaintiff does not know the true names and capacities of the

defendants sued fictitiously as DOES 1 to 10 (DOE DEFENDANTS) and will


amend this Complaint to reflect such information as it is ascertained. Plaintiff
alleges that the DOE defendants are, each, separately or in groups, in some manner
responsible for the acts complained of herein. Plaintiff further alleges that the
DOE DEFENDANTS were the agents, employees or responsible individuals or
entities in respect to the allegations set forth in this Complaint.
STATUTORY BACKGROUND
12.

Ks. Stat. Ann. 65-4105(h)(1) (KCSA) imposes felony criminal

liability for the possession, distribution, storage, transportation or manufacture of


any drug containing tetrahydrocannabinol, including all strains of cannabis, and
places such drugs into the states Schedule 1 listing of drugs.
COMMON FACTUAL ALLEGATIONS
13.

Plaintiff BANDA is the mother of two children including one 11-

year-old son (MINOR CHILD). BANDA suffers from the painful symptoms
and effects of Crohns Disease. Her condition was debilitating and rendered her
unable to participate in normal life activities. BANDA has had seventeen (17)
surgeries related to her conditions over a period of eight (8) years. Various
prescription medications and aides were ineffective in relieving the symptoms and
pain or had such strong side-effects that she was rendered immobile.

14.

Several years ago, following the recommendation of qualified and

licensed physicians, BANDA was using oil derived from the cannabis plant to treat
her Crohns Disease. Upon treating the condition with cannabis oil, the
debilitating symptoms that had rendered her unable to work and essentially
confined to her home were significantly relieved. When BANDA has been unable
to obtain and use cannabis to treat her condition, the debilitating pain and
symptoms return again rendering her unable to function normally and prevent her
from participating in many life activities.
15.

BANDAs children were, as children of parents using other

medications often are, aware of her use of cannabis to treat debilitating Crohns
Disease. Over time, BANDA had educated her children about cannabis and
cautioned her 11-year-old that it is a medication she uses.
16.

Plaintiff is informed and believes and based upon such information

and belief alleges that on March 24, 2015 a classroom counseling program the
subject of which was gateway drugs (i.e. alcohol, tobacco and cannabis) was
presented by Defendant STUBENHOFFER along with a DOE Defendant police
officer to the public school class of MINOR CHILD. During the presentation,
MINOR CHILD objected to inaccurate statements made about cannabis by
STUBENHOFFER. MINOR CHILD informed STUBENHOFFER, who was
using the term marijuana, that the proper term is cannabis and that cannabis is a
medication used by his mother for Crohns disease. Thereafter, the MINOR
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CHILD was sent to school administrators who then questioned him outside the
presence of BANDA and his father.
17.

Plaintiff is informed and believes and based upon such information

and belief alleges that following their questioning of MINOR CHILD, school
personnel contacted the GCPD to report alleged cannabis use by Plaintiff
BANDA. Thereafter, officers from the GCPD went to the public school, took
custody of MINOR CHILD and questioned him without either of his parents being
notified or present. Thereafter, the GCPD and DEPARTMENT have kept and
controlled custody of MINOR CHILD despite repeated demands that he be
returned to BANDA.
18.

On the afternoon of March 24, 2015, BANDA returned to her home

in Garden City, Kansas to find several GCPD officers and DEPARTMENT


personnel on her property. With her phone, BANDA captured video of her
encounter and the actions taken by government officials.
19.

Plaintiff BANDA observed personally, and video evidence taken by

her shows, officers on her property without a warrant. Officers were in the back
area and in a small garage at the rear of the property. DEPARTMENT personnel
were near the front of her house and were questioning BANDAs other child.
20.

Despite being asked to leave by BANDA, officers remained on the

property. Officers who were observed at the back of the property when BANDA
arrived and who had moved to the front of the property were asked why they had
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been in the back yard and garage of the property. The officers denied they had
been in the back of the property or gone into the garage.
21.

Several hours after waiting at the property, a search warrant obtained

by officers was executed. BANDAs medication used to treat her Crohns Disease
was taken by officers during execution of the warrant along with property used by
BANDA to prepare medical cannabis into a form effective for alleviating the
excruciating and debilitating symptoms and effects of Crohns Disease.
22.

At no time has BANDA allowed use of marijuana by MINOR

CHILD. The State of Kansas has taken action that has deprived BANDA of any
and all parental rights, control and custodial decision making with respect to
MINOR CHILD.
DECISIONAL LAW BACKGROUND
23.

The Due Process provisions of the Fourteenth Amendment require

that review of laws impacting rights deemed fundamental are analyzed using the
strict scrutiny standard of review. Washington v. Glucksberg, 521 U.S. 702, 719
(1997); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673 (1976). [I]t cannot now be
doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and
control of their children. Troxel v. Granville, 530 U.S. 2000, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000).

24.

[T]he Due Process Clause does not permit a state to infringe on a

fit parents fundamental right to make child rearing decisions simply because a
court disagrees with the parent or believes a better decision could be made.
Rogers v. Rogers, 2007 WI App 50, 300 Wis.2d 532, 731 N.W.2d 347 18 (citing
Troxel, 530 U.S. at 65, 72-73).
25.

Through emerging awareness, a fundamental right has been

established for medical cannabis patients seeking to alleviate excruciating pain and
discomfort given: (A) thirty-two (32) states and the District of Columbia have
enacted some form of cannabis legislation for patients suffering from severe illness
and disability; (B) Congress enacted section 538 of the 2015 Omnibus
Appropriations Act prohibiting the Department of Justice from using funds in a
manner inapposite to the implementation of state medical cannabis laws; (C) in
January, 2013, the National Cancer Institute, part of the federal governments
National Institutes of Health, reported cannabis reduces the size of cancerous
tumors; (D) in 2003, the United States obtained a patent titled, The Antioxidant
and Neuroprotective benefits of Cannabinoids; (E) multiple scientific studies
and reports show cannabis is the only medication effective in treating severe
childhood epilepsy; and (F) numerous scientific articles report cannabis is effective
in treating a myriad of human health ailments. Unlike in 2007 when the Raich due
process decision was handed-down by the Ninth Circuit, sufficient recognition
akin to that required by the Supreme Court in Lawrence v. Texas has been achieved
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for purposes of emerging awareness. Lawrence v. Texas, 539 U.S. 558, 578, 123
S.Ct. 2472, 156 L.Ed.2d 508 (2003); Raich v. Gonzales, 500 F.3d 850, 864-66
(2007).
FIRST CLAIM FOR RELIEF
(Violation of 42 U.S.C. 1983, 9th and 14th Amendments, Due Process)
26.

Plaintiff re-alleges and incorporates the allegations included in

paragraphs 1-23 of this Complaint.


27.

Plaintiff has a liberty interest specially protected by the Due Process

Clause of the Fourteenth Amendment that embraces a right to make a life-shaping


decision to use medical marijuana to preserve bodily integrity, avoid intolerable
pain, alleviate symptoms and ameliorate the extreme and debilitating symptoms of
Crohns disease from which she suffers. Plaintiffs due process and liberty rights
at issue here are substantive, are not explicitly enumerated in the Constitution and
are protected through the Ninth and Fourteenth Amendments to it.
28.

Plaintiffs right to use cannabis medicinally is deeply rooted in this

Nation's history and tradition, and implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if they were sacrificed. Raich,
supra, 500 F.3d at 865.
29.

Sufficient emerging awareness of the medical benefits of

marijuana as well as its acceptance both scientifically and socially has occurred
since the 2007 decision in Raich and includes, but is not limited to, the following:
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A.

On December 16, 2014, the President signed H.R. 83, the Omnibus
Appropriations Act of 2015, which was thereafter codified as Public
Law 113-265. Section 538 of P.L. 113-265 provides:
None of the funds made available in this Act to the Department of
Justice may be used, with respect to the States of Alabama, Alaska,
Arizona, California, Colorado, Connecticut, Delaware, District of
Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nevada, New Hampshire, New Jersey, New
Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah,
Vermont, Washington, and Wisconsin, to prevent such States from
implementing their own State laws that authorize the use,
distribution, possession, or cultivation of medical marijuana.

B.

Each of the thirty-two (32) states identified in Section 538 of P.L.


113-265 as well as the District of Columbia have some form of
legislation or pending legislation identifying medicinal uses for and
value of cannabis.

C.

On January 17, 2013, the National Cancer Institute, part of the


federal governments National Institutes of Health, reported:
Cannabinoids may cause antitumor effects by various mechanisms,
including induction of cell death, inhibition of cell growth, and
inhibition of tumor angiogenesis invasion and metastasis.[9-12] One
review summarizes the molecular mechanisms of action of
cannabinoids as antitumor agents.[13] Cannabinoids appear to kill
tumor cells but do not affect their nontransformed counterparts and
may even protect them from cell death. These compounds have been
shown to induce apoptosis in glioma cells in culture and induce

regression of glioma tumors in mice and rats. Cannabinoids protect


normal glial cells of astroglial and oligodendroglial lineages from
apoptosis mediated by the CB1 receptor.
D.

In December, 2013, the U.S. Food and Drug Administration


approved the testing of cannabis for pediatric epilepsy.

E.

In 2012, a team at Britains University of Reading, working with GW


Pharmaceuticals and Otsuka Pharmaceuticals, performed laboratory
tests with cannabis related to epilepsy and found it strongly
suppressed seizures without causing the uncontrollable shaking and
other side effects of existing anti-epilepsy drugs.

F.

In September, 2012, the journal Molecular Pharmacology reported a


study showing that Delta 9-tetrahydrocannabinol (THC) both
competitively inhibits the enzyme acetylcholinesterase (AChE) as
well as prevents AChE-induced amyloid -peptide (A)
aggregation and concluded cannabis could halt the progression of
Alzheimers disease.

G.

In 2011, a controlled study conducted on patients suffering from


Crohns Disease found cannabis provided significant relief for ten
out of eleven patients with five patients achieving complete
remission.

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H.

On December 17, 2009, President Obama signed Public Law 111-117.


The House Report on Public Law 111-117 (P.L. 111-117, enacted Dec.
17, 2009) provides:
[T]he measure [H.R. 3170 amended (111th Congress, 2009) (P.L.
111-117)] allows the District [of Columbia] to conduct and
implement a referendum [referring to 1998 D.C. voter Initiative 59]
on use of marijuana for medical purposes, as has been done in
various states. H.Rpt. 111-202 (2009).
Thereafter, following approval by Congress pursuant to its art.1,
sec.8, cl.17 plenary power over it, the District implemented its
Legalization of Marijuana for Medical Treatment Act, a program fully
operating in the seat of the federal government including cultivation,
processing and distribution of medicinal cannabis to patients.

30.

Despite substantial evidence showing the medicinal benefits and

value of marijuana, KANSAS continues to impose the KCSA on its citizen and
prohibits the use, possession, distribution, cultivation, transportation or storage of
any cannabis. Based on these prohibitions, on June 5, 2015, the State of Kansas
charged BANDA with violating the KCSA. The felony charges filed against
BANDA subject her, if found guilty, to up to thirty (30) years in state prison.
31.

The actions of the Defendants in charging Plaintiff with felonies

subjecting her to up to thirty (30) years in prison for using a plant that has been
shown in studies to significantly reduce the symptoms and pain associated with

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Crohns Disease when no other prescription drug or remedy has been effective in
doing so objectively shocks the conscience of any reasonable person.
32.

The KCSA is not narrowly drawn in respect to the governmental

interest at issue and in light of Plaintiffs fundamental right to use cannabis


pursuant to the recommendation of a physician to treat the debilitating Crohns
Disease from which she suffers (given all other methods to treat and alleviate her
condition have failed). Raich, supra, 500 F.3d at fn.16. Indeed, the KSCA could
remain effective without impeding her fundamental right by exempting the medical
use of cannabis when recommended by a physician and imposing restrictions
similar to those imposed for other prescription drugs by Defendant KANSAS.
33.

Insofar as it operates to deprive Plaintiff BANDA of the fundamental

right set forth above, the KCSA violates Plaintiffs substantive due process rights
protected through the Fourteenth Amendment to the Constitution and rights
provided for through the Ninth Amendment to the Constitution.
34.

As a result of the unconstitutional KCSA, Plaintiff BANDA has

suffered mental and physical damages in an amount to be proven at time of trial.


35.

As a result of the Defendants ongoing enforcement of the

unconstitutional KCSA, Plaintiff BANDA continues to suffer irreparable harm.


36.

The Plaintiff is not charged with violating any provision of federal

law and the issues raised by her in this claim relate solely to her Fourteenth

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Amendment substantive due process rights as applied to actions taken against her
under state law.
SECOND CLAIM FOR RELIEF
(Violation of 42 U.S.C. 1983, 14th Amendment, Due Process)
37.

Plaintiff re-alleges and incorporates the allegations included in

paragraphs 1-33 of this Complaint.


38.

Plaintiff BANDA has a fundamental right to make decisions

concerning the care, custody, and control of MINOR CHILD.


39.

Since April 2015, Defendants KANSAS, the DEPARTMENT,

GCPD, BROWNBACK, GILMORE, HAWKINS and the DOE Defendants have


deprived BANDA of her fundamental right based solely on the unconstitutional
KCSA and specifically her medicinal use of marijuana by removing the MINOR
CHILD from her custody, keeping the MINOR CHILD from her and depriving
her from engaging with and making decisions concerning the MINOR CHILD.
40.

The actions of Defendants KANSAS, the DEPARTMENT,

BROWNBACK, GILMORE, HAWKINS and the DOE Defendants have caused


Plaintiff to suffer mental and physical damages in an amount to be proven at time
of trial.
41.

The ongoing actions of Defendants KANSAS, the DEPARTMENT,

BROWNBACK, GILMORE, HAWKINS and the DOE Defendants continue to


cause Plaintiff to suffer irreparable harm.
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THIRD CLAIM FOR RELIEF


(Violation of 42 U.S.C. 1983, 4th and 14th Amendments)
42.

Plaintiff re-alleges and incorporates the allegations included in

paragraphs 1-33 and 36-39 of this Complaint.


43.

Plaintiff BANDA has a fundamental right to make decisions

concerning the care, custody, and control of MINOR CHILD.


44.

At all times complained of herein, Plaintiff BANDA had a right

under the Fourth Amendment to the Constitution to be free from unreasonable


search and seizure of her property, person and the person and property of MINOR
CHILD, over whom she had a fundamental right to maintain custody of, care for
and control.
45.

While in the temporary custody of the public school he attended,

MINOR CHILD was, without the authorization of BANDA or his father,


transferred to the custody of an officer of the GCPD. When MINOR CHILD was
taken by the police, there was no probable cause to believe or allegation made that
he had committed a crime.
46.

At no time did BANDA authorize the public school that had been

granted only limited and temporary custody and control over MINOR CHILD to
transfer MINOR CHILD to the GCPD. The transfer of MINOR CHILD was
outside the scope of the authority granted to the public school which is and was a
public entity and part of Defendant KANSAS.
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47.

At no time did Plaintiff BANDA, in light of her fundamental right to

control MINOR CHILD as well as the custody and care of him, authorize the
GCPD, KANSAS or DEPARTMENT to take custody and control of MINOR
CHILD.
48.

No police officer of the GCPD or the GCPD itself were designated in

documents provided by BANDA when MINOR CHILD was registered to attend


the public school as individuals or entities MINOR CHILD could be released to or
designated as persons who could authorize the removal of him from school.
49.

No warrant was obtained or consent received from BANDA or the

MINOR CHILDs father granting the Defendants the right to seize MINOR
CHILD, to control the custody and care of MINOR CHILD and thereafter
question him without the consent of BANDA.
50.

No permission was obtained or consent given by BANDA or the

father of the MINOR CHILD to question MINOR CHILD.


51.

No exigent circumstance existed that posed a danger to MINOR

CHILD or any other person such that a properly executed seizure warrant or
custody order could not have been obtained by the Defendants prior to seizing the
MINOR CHILD and taking control of him.
52.

By transferring custody of MINOR CHILD to the GCPD, the public

school, a unit, subdivision or part of Defendant KANSAS, violated the Fourteenth

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Amendment fundamental due process right of BANDA to make decisions


concerning the care, custody, and control of MINOR CHILD.
53.

Plaintiff had a reasonable expectation that information known by

MINOR CHILD regarding the health condition from which she suffers and the
medication used by her to treat that condition would be kept private from and
outside the scope of the temporary custody and control over MINOR CHILD
granted by her to the public school, which was an is a subdivision or part of
Defendant KANSAS.
54.

By maintaining custody and control of MINOR CHILD outside the

scope of the authority provided to them as well as questioning MINOR CHILD


outside the presence of either BANDA or his father and without their permission
to do so, the Defendants violated the Plaintiffs Fourth and Fourteenth
Amendment rights.
55.

As a result of the aforementioned violations of her constitutional

rights, the Plaintiff has suffered damages in an amount to be proven at time of trial.
FOURTH CLAIM FOR RELIEF
(Declaratory Relief)
56.

Plaintiff re-alleges and incorporates the allegations included in

paragraphs 1-52 of this Complaint.


57.

An actual case and controversy exists between the Plaintiff and

Defendants in that the Defendants have taken action against the Plaintiff depriving
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her of certain fundamental rights protected by the Constitution. The injury


suffered by Plaintiff is an actual injury in that her child has been taken from her and
she has been deprived of her liberty and freedom subject to conditions imposed by
the Defendants. Moreover, the Plaintiffs long-term liberty interests are at stake
based upon a law that, as applied, is unconstitutional.
58.

The Plaintiff asserts that she has certain fundamental rights as set

forth in this Complaint and the Defendants contend she has no such rights.
59.

Given the controversy between the parties, it is necessary and

appropriate for the Court to make a determination as to whether the fundamental


rights asserted by the Plaintiff render the KCSA, as applied, unconstitutional.
FIFTH CLAIM FOR RELIEF
(Injunctive Relief)
60.

Plaintiff re-alleges and incorporates the allegations included in

paragraphs 1-56 of this Complaint.


61.

The claims made by Plaintiff in this Complaint have a substantial

probability of succeeding on the merits given the present level of emerging


awareness and recognition of the medicinal benefits of cannabis and acceptance of
it by 35 states and the District of Columbia as well as by Congress in Section 538 of
the 2015 federal appropriations law compared to the level recognized by the Ninth
Circuit Court of Appeals in 2007 in the Raich case.

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62.

The ongoing deprivation of her parental rights and custody of the

MINOR CHILD, deprivation of liberty and continuing violation of her


fundamental rights constitute severe and irreparable harm.
63.

The ongoing proscription by the Defendants under state law of

cannabis used by the Plaintiff when cannabis is the only medication that works to
effectively treat and alleviate the painful and debilitating Crohns Disease from
which she suffers constitutes irreparable harm.
64.

The Defendants cannot provide any cognizable hardship that would

result if the KCSA were to include provisions allowing the medicinal use of
marijuana by the Plaintiff in light of exceptions already provided for other
prescription drugs.
65.

Given the balance of hardships weighs entirely in favor of Plaintiff

and the likelihood of her success on the merits in this case, injunctive relief
prohibiting the Defendants from enforcing the KCSA against Plaintiff is necessary
and appropriate.
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PRAYER FOR RELIEF


PLAINTIFF PRAYS FOR RELIEF AS FOLLOWS:
1.

For a declaration by the Court that Plaintiff has a fundamental right

to use cannabis recommended by her physician for medicinal purposes to treat the
painful and debilitating conditions related to Crohns Disease;
2.

For a declaration by the Court that Plaintiff has a fundamental right

to make decisions concerning the care, custody, and control of MINOR CHILD
that cannot be abrogated based solely on her possession and use of cannabis
recommended by her physician to treat the painful and debilitating conditions
related to the Crohns Disease from which she suffers;
3.

For an injunction prohibiting the Defendants from continuing to

enforce the KCSA against Plaintiff to deprive her of custody of MINOR CHILD;
4.

For an injunction prohibiting the Defendants from continuing to

enforce the KCSA against Plaintiff based solely on her use, possession,
preparation, storage or transportation of cannabis used solely to treat pain and
symptoms of Crohns Disease from which she suffers;
5.

For damages in an amount to be proven at time of trial;

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6.

For attorneys fees; and

7.

For any other relief the court deems appropriate in this case.

DATED:____________

___________________________
Matthew S. Pappas (CSBN: 171860)
Pro hac vice application pending
Co-Counsel
1719 E. Broadway
Long Beach, CA 90802
(949) 382-1485
Fax: (949) 382-1512
matt.pappas@mattpappaslaw.com

___________________________
Sarah G. Swain (KSBN: 20417)
Local Counsel and Co-Counsel
2311 Wakarusa Dr., Suite J
Lawrence, KS 66047
(785) 842-2787
sarah@thesswainlawoffice.com

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