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Request for Reconsideration:

Decision of the Review Committee in Formal Complaint Against Stanton A. Hazlett

Submitted by: Keen A. Umbehr April 24, 2013

BEFORE A REVIEW COMMITTEE APPOINTED UNDER SUPREME COURT ORDER 2012 SC 52


Complainant: Keen A. Umbehr, #22047 P.O. Box 482 Alma, Kansas 66401 Keen@keenjustice.com Respondent: Stanton A. Hazlett, #9531 Disciplinary Administrator 701 SW Jackson, First Floor Topeka, Kansas 66603 Date Complaint Filed: May 23, 2012 Date of Dismissal: February 1, 2013 Date of Complainants Request for Reconsideration: April 23, 2013 Special Prosecutor: Edward G. Collister, Jr. Collister & Kampschroeder 3311 Clinton Pkwy Ct. Lawrence, KS 66047

Members of the Review Committee: Ms. Nancy Anstaett Rowe & Anstaett, L.L.C. 8675 W. 96th St., Ste. 210 Overland Park, KS 66212 Hon. J. Patrick Brazil 2317 SW Mayfair Place Topeka, KS 66611 Mikel L. Stout Foulston Siefkin, LLP 1551 N. Waterfront Parkway #100 Wichita, KS 67206

REQUEST FOR RECONSIDERATION OF THE HAZLETT DISMISSAL Pursuant to the Internal Operating Rules of the Kansas Board for Discipline of Attorneys B.8., I hereby submit a formal request for reconsideration of your previous decision dated February 1, 2013, wherein you dismissed the formal complaint against Disciplinary Administrator Stanton A. Hazlett (S.C. #9531), which was filed on May 23, 2012 by Keen A. Umbehr (S.C. #22047). In support of my request for reconsideration, I provide the following facts: Decision of the Review Committee According to the written decision dated February 1, 2013, and released by Carol Green on February 6, 2013, the dismissal of the Hazlett complaint by Nancy S. Anstaett, J. Patrick Brazil, and Mikel L. Stout (hereinafter referred to as the Anstaett committee"), was based on a conclusion that the Review Committee members who were appointed to investigate the ethics complaint filed against Keen A. Umbehr by the Kansas Department of Corrections (Case No. DA10,902), Sara Beezley, Robert Guenthner and William Swearer (hereinafter referred to as the Beezley committee), made a finding of probable cause which predated Mr. Hazletts statements to Keen Umbehrs then-attorney, John Ambrosio, claiming that the Beezley Review Committee had already made a finding of probable cause and that he (Mr. Hazlett) planned to prepare a formal complaint and set the matter for hearing. 1

The Anstaett committee dismissed the formal complaint against Stanton A. Hazlett for the following reasons:

The rules adopted by the Supreme Court of Kansas, specifically, the Internal Operating Rules of the Kansas Board for Discipline of Attorneys B.8., states: The Review Committee, upon a proper showing, may reconsider any decision. After reconsidering an order, the Review Committee may direct any action pursuant to Rule 210(c). I hereby request that the members of the Anstaett Review Committee reconsider their previous decision to dismiss the formal complaint against Stanton A. Hazlett for the following reasons: 1. The Anstaett Committee finding is unsupported by any documented evidence substantiating a finding of probable cause in the Umbehr case (DA 10,902). The Anstaett committees conclusion that the Beezley committee found probable cause in the Umbehr complaint (DA Case No. 10,902) is without any factual basis. a. Mr. Collisters investigation did not produce any documents, notes, minutes, affidavits or review committee reports which provided evidence of a finding of probable cause by the Beezley committee in the Umbehr case. i. There are no Review Committee reports in existence from the Beezley committee reflecting a finding of probable cause in the Umbehr complaint. (See Exhibit XX; Hazlett complaint) ii. If the Beezley Committee had in fact found probable cause, such a vote would have been recorded by the Chair of the Committee, Sara Beezley, in accordance with Internal Operating Rules of the Kansas Board for Discipline of Attorneys Rule B.7., which states: A record reflecting each action of the Review Committee shall be prepared by the Chair and distributed to the Review Committee members and the Disciplinary Administrator. [Emphasis added] Failure to make a record reflecting each action of the Review Committee would constitute a violation of Rule B.7., by Sara Beezley, Chair. iii. The reason Sara Beezley did not produce a report which recorded a finding of probable cause, is because the Beezley committee never found probable cause in the Umbehr case by majority vote ever. iv. The record proves that the only time the Beezley committee voted on whether the facts contained in the Umbehr complaint supported a finding of probable cause by clear and convincing evidence was on October 24, 2011, when the committee decided to dismiss the complaint with a letter of caution. (See copies of all five Beezley committee reports; Exhibit XX; Hazlett complaint.) v. If the Beezley committee had in fact found probable cause by majority vote in 2010, then the Umbehr complaint DA Case No. 10,902, would have proceeded to a panel hearing. In addition, on October 5, 2010, I had informed my attorney John Ambrosio of my

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decision not to accept any form of diversion or admit to a scintilla of guilt. (See Exhibit G; Hazlett complaint) I reiterated my decision not to accept any diversion proposal in a subsequent letter to Mr. Ambrosio dated November 21, 2010 (See Exhibit P; Hazlett complaint). In a letter dated January 12, 2011, from Mr. Hazlett to John Ambrosio, he writes in relevant part: I have not heard back from you regarding Mr. Umbehrs position on diversion . . . If I do not hear from you by that time, I will prepare a formal complaint and set the matter for hearing. As you know, the Review Committee has already made a finding of probable cause in this matter. (See Exhibit R; Hazlett complaint.) In a letter dated January 15, 2011, which was written to Mr. Hazlett and sent via my attorney, John Ambrosio, I restated my October 5, 2010, decision not to accept a diversion or admit to a scintilla of guilt. (See Exhibit S; Hazlett complaint.) Finally, on March 17, 2011, a full five (5) months after I originally informed Mr. Ambrosio of my decision not to accept a diversion proposal, I received a copy of a letter Mr. Hazlett wrote to John Ambrosio acknowledging receipt of my January 15, 2011, letter. Mr. Hazlett stated in part: In that letter Mr. Umbehr makes it clear that he does not wish to be considered for the diversion program. He goes on to state: As I advised you in my January 12, 2011, [letter] to you, there has been a finding by the Review Committee of probable cause in this case. Shortly, I will be setting this matter for hearing. (See Exhibit W; Hazlett complaint.) In summary, Mr. Hazletts January 12, 2011, letter to John Ambrosio (Exhibit R) makes three important statements: 1) that the Review Committee had already made a finding of probable cause; 2) that he intended to prepare a formal complaint; and 3) that he would be setting the matter for hearing. However, Rule 210(c) clearly states: A complaint shall not be referred for panel hearing . . . unless the review committee finds by a majority vote that there is probable cause to believe there has been a violation of the Attorneys Oath or the disciplinary rules of the Supreme Court. [Emphasis added] The fact remains, that the Beezley committee never determined by majority vote that there was probable cause to believe that I had violated any of the KRPC. Therefore, when Mr. Hazlett threatened to prepare a formal complaint and set the matter for hearing, he was actually making a false statement of material fact. Rule 210(c) prohibited him from proceeding to a panel hearing before the Review Committee found probable cause by majority vote. Mr. Hazletts written threat was an attempt to increase the pressure and coerce me into accepting his diversion proposal.

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Neither Ed Collister nor the members of the Anstaett committee have identified a date specific in 2010 when the Beezley committee allegedly made a finding of probable cause by majority vote in accordance with Rule 210(c). The reason the Anstaett committee members did not provide a date, is simply because they could not provide a date. It was impossible for the Anstaett committee to furnish a date for a vote, or a finding, or an event which never occurred. The only time the Beezley committee voted on whether there was probable cause to believe that I had violated the KRPC was on October 24, 2011, when the committee voted to dismiss the complaint due to lack of clear and convincing evidence. In conclusion, the Anstaett committees determination that there was an unreported and undocumented finding of probable cause in the Umbehr complaint, assumes facts not in evidence from either sworn testimony or written documents, and constitutes a clear and flagrant abuse of discretion.

2. The Anstaett Committee finding is unsupported by any sworn testimonial evidence pertaining specifically to the finding of probable cause in the Umbehr case (DA 10,902). Mr. Collisters investigation did not produce a single sworn statement from any member of the Beezley committee stating that they had found probable cause by majority vote that I had violated one or more of the Kansas Rules of Professional Conduct (KRPC). a. The Review Committee members in the Umbehr case consisting of Sara Beezley, Robert Guenthner, and William Swearer did not provide sworn statements stating that they had found by majority vote that there was probable cause to find that I had violated one or more of the Kansas Rules of Professional Conduct (KRPC). i. In order for the Anstaett committee to make the claim that the Beezley committee found probable cause, they must provide evidence that a vote was taken and that the majority of members of the Beezley committee found probable cause. ii. Such a finding of probable cause must be in compliance with KRPC Rule 210(c) which states in part: A complaint shall not be referred for panel hearing, referred to the Attorney Diversion Program, or the discipline of informal admonition imposed unless the review committee finds by a majority vote that there is probable cause to believe there has been a violation of the Attorneys Oath or the disciplinary rules of the Supreme Court. [Emphasis added] iii. If in fact Ed Collister did take sworn statements from Sara Beezley, Robert Guenthner and/or William Swearer, and present 5

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those statements to the Anstaett committee for consideration, I assert that those statements could not and did not include any claim that the Beezley committee took a vote on whether there was probable cause in my case 2010 much less made a finding of probable cause by majority vote. If any of the members of the Beezley committee gave Mr. Collister a sworn statement that they had voted on and established probable cause in the Umbehr case by majority vote pursuant to Rule 210 (c), then those statements would constitute perjury. Sara Beezley, Robert Guenthner and William Swearer are honorable attorneys of impeccable reputation, and I do not believe that they would have proffered perjured statements to special prosecutor, Ed Collister, regarding a finding of probable cause. No member of the Beezley committee would have testified under oath that they found probable cause by majority vote in 2010 because such a statement would have directly contradicted their own five Review committee reports none of which recorded a finding of probable cause. (See Exhibit XX; Hazlett complaint.) In addition, no member of the Beezley committee would have testified under oath that they found probable cause by majority vote in 2010 because such a statement would have directly contradicted statements made by Sara Beezley, Chair, in a letter she wrote to me on April 3, 2012, (and copied to Robert Guenthner and William Swearer), which stated the following:

viii. Ms. Beezleys April 3, 2012, letter to me provides an indisputable timeline (in her own words) of the Review Committees handling of the Umbehr complaint. She states in relevant part: My records actually show that we reviewed your case in April 2011 but put it on hold pending a new submission from you or your counsel and again reviewed the case in August but hadnt received the additional materials from your counsel early enough to decide the case then. On October 24, 2011 we decided on a recommendation of a letter of caution. We do not have anything other than what you have seen. The Disciplinary Administrator indicated in that letter that there was not sufficient evidence to prove a rules violation by clear and convincing evidence so, of course, there would not be a formal hearing. [Emphasis added] ix. Ms. Beezleys admission that the Review Committee did not review my case until April of 2011 provides irrefutable evidence that there could not have been a probable cause finding by majority vote in 2010, because the committee would not have found probable cause prior to reviewing the case file. x. Furthermore, the Beezley committee would never have found probable cause by majority vote prior to receiving Mr. Hazletts 204 Report, which was not submitted to the committee until April 13, 2011. (Exhibit Y; Hazlett complaint; see letter below.)

xi. Therefore, Mr. Hazletts letter to John Ambrosio dated January 12, 2011, (Exhibit R; Hazlett complaint; see letter below), wherein he stated that the Beezley Review Committee had already made a finding of probable cause, and if I did not accept a diversion then he would be drafting a formal complaint and setting the matter for hearing, was an intentional false statement of material fact. Mr. Hazlett knew when he made that statement to my attorney in January of 2011 that he had not yet presented his 204 Report to the Review Committee members for their review. (See letter above; Exhibit Y; Hazlett complaint.) Indeed, Sara Beezleys April 3, 2012, letter to me confirms that the committee did not review my case until their meeting in April of 2011. Simply stated, it would be impossible for the Beezley Review Committee to have made a finding of probable cause by majority vote without the benefit of the 204 Report.

xii. It is worth noting that in Mr. Hazletts April 13, 2011, letter to the members of the Beezley Review Committee, he acknowledges that the Umbehr complaint has been discussed previously, but makes no mention of an earlier finding of probable cause by majority vote. Furthermore, Mr. Hazlett makes no mention of his intention to prepare a formal complaint or set the matter for hearing as he indicated to my attorney, John Ambrosio in his letter to him dated January 12, 2011. (Exhibit R) xiii. Finally, in Mr. Hazletts March 17, 2011, letter to Mr. Ambrosio, (See Exhibit W; Hazlett complaint and letter below), he once again states that there has already been a finding of probable cause by the Review Committee and that it is his intention to set the matter for hearing shortly. Obviously, this was a bluff also known as a false statement of material fact. Mr. Hazlett knew when he made that statement to my attorney in January of 2011 that he had not yet presented his 204 Report to the Review Committee members for their review. (See letter above; Exhibit Y; Hazlett complaint.) Indeed, Sara Beezleys April 3, 2012, letter to me confirms that the committee did not review my case until they convened in April of 2011. Simply stated, it would be impossible for the review committee members to have made a finding of probable cause by majority vote without the benefit of the 204 Report.

3. Ed Collisters investigation did not comply with Supreme Court Rule 52, which in turn led to an erroneous finding/dismissal by the Anstaett committee. Mr. Collisters improper reliance upon non-existent or unsworn testimony from Sara Beezley, Robert Guenthner or William Swearer, when Supreme Court Rule 52(c) explicitly requires that all witness statements be recorded and sworn, led to an erroneous conclusion by the Review Committee members consisting of Nancy Anstaett, J. Patrick Brazil and Mikel Stout regarding a finding of probable cause in DA10,902, which in turn became the sole basis for their dismissal of the Hazlett complaint. a. Supreme Court Rule 52(c) states in part: All interviews must be conducted as sworn statements and recorded by stenographic means or by electronic recordings. i. The members of the Beezley committee did not state under oath to Mr. Collister that they had established probable cause by majority vote in the Umbehr case in 2010, or at any other time thereafter, because such a statement would contradicted multiple documents contained in the record and thereby constituted perjury by any individual who would so testify.

b. On page 2 of the Anstaett committee report, paragraph 3, it states that the special prosecutor, Mr. Collister, conducted an investigation, collected documents and took sworn statements. However, they do not provide the names of the witnesses Mr. Collister reportedly interviewed under oath. i. I allege that either Mr. Collister never interviewed the members of the Beezley committee under oath, or, if he did interview Sara Beezley, Robert Guenthner or William Swearer under oath, he purposely chose not to ask the relevant questions which would have revealed the truth about whether there was actually a verifiable finding of probable cause by majority vote in the Umbehr case. If Mr. Collister was sincerely interested in discovering the truth about what actually occurred and whether or not Stan Hazlett had made false statements of material fact about a finding of probable cause, he would have had to pose the following questions to the members of the Beezley committee: a) If the Review Committee indeed found probable cause by majority vote in 2010, specifically, what date did the committee meet and vote to establish probable cause; b) Where was the meeting held; c) Was the vote to find probable cause a majority vote consisting of 2 of the 3 committee members, or was it unanimous; d) What specific 10

allegations did the committee find probable cause on; e) Was the meeting where probable cause was found by majority vote a special meeting of the Review Committee, or were other cases decided on the same day; f) If other cases were decided on the same date, did Sara Beezley fail to record the actions of the Review Committee in those cases (as required by Rule B.7.), as well as in DA Case No. 10,902; and finally, g) What was the date listed on the 204 Report Mr. Hazlett submitted to the members of the Beezley committee on April 13, 2011? Had Mr. Collister performed his due diligence as special prosecutor in the Hazlett investigation by asking the aforementioned questions, he could easily have substantiated my allegation that there was no probable cause finding by the Beezley committee in 2010, thus proving that the letters Mr. Hazlett sent to my attorney on January 12, 2011, and March 17, 2011, regarding a finding of probable cause contained false statements of material fact. I allege that Mr. Collister did not ask the pertinent questions necessary to find the truth of the matter under investigation, but rather investigated around the truth because he was determined to protect his professional colleague and fellow co-defendant in the Stout case and the man whose agency was the source of funds for the $35,000 payment Mr. Collister received the previous year. ii. I further allege that Examiner Ed Collister, who was appointed as special prosecutor in the formal complaint I filed against Stanton Hazlett, has a history of investigating around the truth when it involves a high-ranking member of the Kansas judiciary. Case in point: In 2006, when thenJustice Lawton Nuss was being investigated for alleged violations of the Rules Relating to Judicial Conduct, Edward G. Collister, Jr., was appointed to serve as special prosecutor in that matter. (Docket No. 954) Additionally, J. Patrick Brazil was the presiding judge who conducted the pre-hearing conference in the Nuss investigation. Judge Brazil and Nancy Anstaett also served on the hearing panel in that case. During the June 15, 2006, pre-hearing conference in the Nuss matter, the Honorable J. Patrick Brazil asked the parties whether they were anticipating any discovery 11

relating to the upcoming hearing. The following excerpt from the official Transcript of Proceedings from the Prehearing Conference, outlines Mr. Collisters response to Judge Brazils question regarding discovery:

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If Ed Collister chose not to seek discovery which would typically include a request for answers to interrogatories, production of documents, admissions, and finally depositions under oath, when serving in the capacity of Special Prosecutor in the Nuss investigation, then I question whether he employed similar strategies when investigating the complaint against Mr. Hazlett. I know for a fact that he chose not to interview me or my attorney, Robert A. Van Kirk, during the course of his investigation despite the fact that we were both obvious key witnesses to the allegations made against Mr. Hazlett, which were contained in the formal complaint. 12

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There are only two Review Committee reports in 2010 from the Beezley committee which pertain to the Umbehr complaint. (See Exhibit XX; Hazlett complaint.) The first report is dated June 24, 2010, and documents activity in Case No. 10,902 to be: Discussion Stan Hazlett. This report does not reflect a finding of probable cause.

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The second Review Committee report from the Beezley committee in 2010 is dated July 30, 2010. (See Exhibit XX; Hazlett complaint.) This report documents the activity in Case No. 10,902 with one word: Hold. Again, this report does not reflect a finding of probable cause.

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In a letter dated April 12, 2012, which I received from Martha Coffman, General Counsel of the Office of Judicial Administration, she states the following on page 5, paragraph 5: (Exhibit XX; Hazlett complaint)

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Ms. Coffman, speaking on behalf of Disciplinary Administrator Stanton A. Hazlett, confirmed that the Beezley committee only met five times to discuss the Umbehr complaint (10,902), and that there are no other reports other than the five which she provided to me in response to a KORA request. Of the five reports which Ms. Coffman provided, only two reflect activity of the committee during 2010, and neither of those two reports record a finding of probable cause. In order for the Anstaett committee to dismiss the allegations that Mr. Hazlett made false statements of material fact when he informed my attorney, John Ambrosio, that there had been a finding of probable cause in my case, Mr. Collister would have had to produce evidence in the form of a written document or sworn statements from the members of the Beezley committee attesting to a specific date, and a specific meeting, at a specific location when the committee members allegedly found by majority vote that there was probable cause to believe that I had violated the KRPC. If Mr. Collister did not present the members of the Anstaett committee with written documentation or sworn testimony from the members of the Beezley committee stating with specificity that there had indeed been a finding of probable cause by majority vote on a date certain in 2010, then it would constitute an abuse of discretion for the Anstaett committee to dismiss the complaint against Mr. Hazlett based on unverified information contained in a confidential investigative report from Mr. Collister which referenced facts not in evidence, documents which could not be produced or examined or even proven to have ever existed and/or conclusions drawn which had no factual support in the form of written documents or sworn testimony. 14

In conclusion, according to Supreme Court Rule 52(c), the Anstaett committee was prohibited from considering any statements, summaries from informal discussions, conversations or interviews, off-the-record comments, unsworn letters, memorandums, or affidavits. Anything other than sworn statements from key witnesses in this matter, fails to comply with the requirements of Supreme Court Rule 52(c). This procedural defect in the Anstaett committees decision to dismiss the formal complaint against Mr. Hazlett has created an erroneous outcome in the Hazlett complaint. 4. Ed Collisters investigation did not pass the thoroughness test. Mr. Collisters refusal to interview me, the Complainant, at any time during the course of his investigation into the 12-count, 52-exhibit, 193-page ethics complaint which I filed against Stanton Hazlett, constitutes a fatal error in his investigative strategies and was prejudicial to my complaint. a. Mr. Collisters decision not to interview me is an indication of his unwillingness to conduct a fair and unbiased inquiry into the allegations contained in my complaint against Mr. Hazlett. b. By failing to interview me, Mr. Collister denied me the opportunity to make sworn statements on the record which would have provided the Anstaett committee members with valuable input and additional information which may have shed light on the matter at hand, and impacted the conclusions ultimately drawn. c. By refusing to grant me equal access/opportunity to offer my personal input into the investigative process, Mr. Collister has demonstrated his obvious bias and proven that his investigation was incomplete, one-sided, and lacked the requisite thoroughness expected from a special prosecutor appointed by the Kansas Supreme Court. d. Mr. Collisters handling of this investigation calls into question his competency as set forth in Rule 1.1 of the KRPC. i. To illustrate the atypical nature of Mr. Collisters decision not to interview the Complainant as part of his investigation, I would like to point out that in a recent 10-sentence, unsigned email complaint that was filed against me not by a client, but by the friend of a former client regarding a case that had been concluded three years previously, the special prosecutor assigned to investigate that complaint indicated that he engaged in a lengthy interview with the Complainant regarding her claims. (The complaint was ultimately dismissed.) ii. The Complainant who submitted this 10-sentence, unsigned email, was in fact interviewed and consequently received more investigatory time and attention from the special prosecutor assigned to investigate her allegations, than I received from Mr. Collister when he investigated my signed, 12-count, 193-page complaint, complete with 52 exhibits. iii. In spite of the fact that the person who filed this 10-sentence complaint did not provide any supporting documentation to substantiate the allegations leveled against me, the special prosecutor interviewed the

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complainant at length nonetheless. In contrast, Mr. Collister never interviewed me or my attorney, Robert A. Van Kirk. e. In addition, Mr. Collister refused to provide me with a copy of Mr. Hazletts response to the 12-count complaint, despite my specific, written request dated October 8, 2012, and sent by certified mail, return receipt requested. An excerpt of my letter to Mr. Collister follows below:

i. As referenced in the excerpted letter to Mr. Collister above, Mr. Hazlett sent me a letter dated October 23, 2009, notifying me that Charles Simmons from the Kansas Department of Corrections had filed an ethics complaint against me. In that same letter, Mr. Hazlett informed me that my response to the complaint would be provided to the Complainant, Mr. Simmons. (See Exhibit D in Hazlett complaint, and excerpt of Mr. Hazletts letter below.)

ii. Not only did the Complainant, Mr. Simmons, receive a copy of both of my bound responses to the complaint which he filed against me, but he was also granted the opportunity to offer rebuttals and submit counterresponses to my answer. iii. The following letter dated February 23, 2010, from SI Terry Morgan, investigator with the Disciplinary Administrators Office, outlines a list of all the responses his office received from Mr. Simmons: 16

iv. The above letter clearly shows that Mr. Simmons submitted four separate supplemental responses after the initial filing of a formal complaint. In his letter to Mr. Hazlett dated November 16, 2009, Mr. Simmons provided a 3-page rebuttal to my initial response to the ethics complaint he filed against me. The following is an excerpt of Mr. Simmonss letter regarding his submission of a counter-response:

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v. If Mr. Simmons was provided with a copy of my written responses to the complaint which he filed against me, and was afforded the opportunity to submit a written rebuttal to the same, there is no justification for why Mr. Collister refused to extend the same courtesy to me. In other words, Mr. Collister failed to follow the same investigatory protocols which Mr. Hazlett adopted during his handling of the complaint filed against me by Mr. Simmons. vi. I allege that it is wholly inequitable for Mr. Collister to deny me the same open access to information, namely, a copy of Mr. Hazletts response. In addition, it is equally unfair that the complainant who filed an ethics complaint against me was given the opportunity to offer a rebuttal to my response, however, Mr. Collister has denied me the same opportunity to offer a rebuttal to Mr. Hazletts response. vii. Additionally, it is worth noting that when the ethics complaint was filed against then Justice Lawton Nuss, his response to the complaint was initially released to the public and posted on the kscourts.org web site at: http://www.kscourts.org/nussanswer.pdf. A link to the response was also posted on the Lawrence Journal-World web site at: http://www2.ljworld.com/news/2006/jun/16/unprecedented_hearing_s et_justice/ The fact that Mr. Collister failed to interview me or my attorney, or provide a copy of Mr. Hazletts response and grant me the opportunity to offer a rebuttal, provides undeniable evidence that a double standard has been applied in this case. In summary, Mr. Collister was entrusted with the weighty responsibility of investigating a highranking government official accused of serious ethical misconduct. However, Mr. Collisters handling of the Hazlett complaint demonstrates a clear bias and purposeful departure from standard investigatory protocols typically employed by and expected of a special prosecutor appointed by the Kansas Supreme Court. In conclusion, as a result of Mr. Collisters calculated decision to conduct a one-sided investigation, the Anstaett committee members were denied access to pertinent information that would have provided clear and convincing evidence that Mr. Hazlett had indeed made false statements of material fact about a finding of probable cause prior to any formal decision by a majority vote of the Beezley Review Committee regarding the Umbehr case. Mr. Collisters failure to conduct a thorough and balanced investigation created an inaccurate and fraudulent portrayal of Mr. Hazletts actions, thereby producing a final outcome which was unsupported by any factual evidence or any sworn testimony. 5. It was an abuse of discretion for the Anstaett Committee to disregard uncontroverted, direct evidence contained in the record. The Anstaett Committees decision to dismiss the ethics complaint filed against Disciplinary Administrator Stanton A. Hazlett, was based primarily on their finding of the following fact:

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Allegations of false statements by Hazlett are not supported. He proceeded in good faith based on actions of the KBDA review committee. This finding of fact from the Anstaett Review Committee has three parts: 1) The allegations of false statements by Hazlett (contained in the 193-page, 12-count complaint with 52 exhibits) were not supported; 2) Mr. Hazlett proceeded in good faith; 3) Mr. Hazlett relied upon certain actions of the KBDA Review Committee. This finding of fact by the Anstaett committee contradicts the following documents, the majority of which were contained in the record and included as exhibits with the formal complaint filed against Stanton A. Hazlett on May 23, 2012: a. The five Review committee reports from the Beezley committee relating to Case No. DA 10,902 none of which reflect a finding of probable cause in the Umbehr case: i. Beezley Review Committee Report for June 24, 2010: Discussion Stan Hazlett (Exhibit XX Attachment 5) ii. Beezley Review Committee Report for July 30, 2010: Hold (Exhibit XX Attachment 6) iii. Beezley Review Committee Report for April 22, 2011: Hold pending new submission from Respondent will reconsider (Exhibit XX Attachment 7) iv. Beezley Review Committee Report for August 2, 2011: Hold (Exhibit XX Attachment 8) v. Beezley Review Committee Report for October 24, 2011: Letter of Caution - if doesnt accept, institute formal charges (Exhibit XX Attachment 9) In Martha Coffmans letter dated April 12, 2012, she unequivocally confirms that the Disciplinary Administrator has no other documents or reports produced by a Review Committee member relating to Case No. DA10,902. (Exhibit XX; Hazlett complaint) Secondly, in a letter dated December 14, 2011, from Stanton Hazlett to my attorney, Robert A. Van Kirk, Mr. Hazlett states the following in relevant part: When the Review Committee meets, there is discussion amongst the members and then a decision is made. That decision is memorialized by the Chair of the Review Committee, Sara Beezley. There is not a transcript of the meeting and there are no notes made by the committees members. In this case, the Review Committees decision would have been a report to our office . . . . (Exhibit HH; Hazlett complaint) [Emphasis added]

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With this letter, Mr. Hazlett confirms that actions of the committee are memorialized by the Chair of the Review Committee, Sara Beezley, and that there are no other notes or transcripts which record the actions of the Review Committee. Thirdly, Martha Coffman makes the following statement on Page 5, Paragraph 5 of her letter dated April 12, 2012: The Report of the Review Committee is the only document that memorializes decisions made by the Review Committee during its meeting on October 21, 2011. (Exhibit XX) Lastly, the Internal Operating Rules of the Kansas Board for Discipline of Attorneys, Rule B.7., states: A record reflecting each action of the Review Committee shall be prepared by the Chair and distributed to the Review Committee members and the Disciplinary Administrator. [Emphasis added] Therefore, in light of the fact that each action of the Review Committee must be recorded by the Chair pursuant to Rule B.7., and none of the five Review Committee reports outlined above recorded a finding of probable cause, coupled with the letters received from Mr. Hazlett and Ms. Coffman, confirming that there are no other reports, notes or transcripts produced by any Review Committee member memorializing the actions taken by the Beezley committee relating to Case No. DA10,902, it is without question that Ed Collister did not produce a single written document or report to the Anstaett committee which could be interpreted as evidence that the Beezley committee made a finding of probable cause by majority vote on a specific date, at a specific meeting in the Umbehr case. And, the reason why Mr. Collister did not produce a single document or report showing that the Beezley committee found probable cause by majority vote in the Umbehr case is because the Beezley committee never found probable cause by majority vote in the Umbehr case at any point in time during the 2-year long investigation. Ed Collister could not identify a date or produce a record for an event which never actually occurred. Additionally, this would explain why Mr. Collister was unable to produce any sworn statements from any member of the Beezley Review Committee attesting to a finding of probable cause by a majority vote in the Umbehr case. Bear in mind, according to Rule 210(c), Mr. Hazlett could not proceed to a panel hearing as he threatened to do in his letter to my attorney dated January 12, 2011, (See Exhibit R) unless the Beezley committee made a formal finding of probable cause by majority vote. This threat was a false statement of material fact made for the purpose of coercing me into accepting a diversion. The Anstaett committee was without factual basis for dismissing the allegations against Mr. Hazlett based on supposed actions of the Beezley Review committee for which there is no specific date, no actual document evidencing the meeting time or location, or a recording of a finding of probable cause by majority vote even though Rule B.7., requires that every action be recorded in the form of a written report. In addition, Mr. Collister did not provide the Anstaett committee with any sworn statements from any member of the Beezley committee stating that they found probable cause in my case by majority vote. In conclusion, there were no other actions taken by the Beezley Review Committee other than those documented in the five Review Committee reports. Therefore, the claim made by the Anstaett committee that Mr. Hazlett operated in good faith based on actions of the Beezley 20

committee, is not supported by any documented evidence in the record. The records listed above clearly prove that the Beezley committee never made a finding of probable cause by majority vote at any time during the pendency of the Umbehr complaint. b. Letter dated April 3, 2012, which I received from Ms. Beezley stating that the Review Committee did not review my case DA10,902 until April of 2011, (after Mr. Hazlett had informed my attorneys that the Beezley Committee had already made a finding of probable cause), and that the matter was held until the October, 2011, Review Committee meeting, at which time the committee dismissed the complaint.

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It is worth noting that nowhere in the above letter, wherein Ms. Beezley recounts the history of the Umbehr case, does she mention a finding of probable cause. By Sara Beezleys own admission, the Review Committee did not review my case until April of 2011. This letter constitutes direct and indisputable evidence that the Beezley committee could not have found probable cause by majority vote at any time in 2010, because they didnt even review the case for a determination until April of 2011 at which time they held it until October of 2011 when it was ultimately dismissed. Therefore, statements made by Mr. Hazlett in letters he sent to my attorneys dated January 12, 2011 (Exhibit R), and March 17, 2011 (Exhibit W), claiming that the Review Committee had already made a finding of probable cause, combined with his threats to prepare a formal complaint and set the matter for hearing, were blatantly false and clearly pre-date the Review Committees meeting in April of 2011, when they reviewed my case for the first time. In conclusion, the Anstaett committees determination that the Beezley committee made a finding of probable cause (which became the basis for the dismissal), is not supported by any factual documentation, and is contradicted by overwhelming direct evidence contained in the Hazlett complaint. The truth of the matter is that if the Anstaett committee was attempting to exonerate Mr. Hazlett from the allegation that he made false statements to my attorneys in letters dated January 12 and March 17, 2011, then they would have to establish that the reported finding of probable cause occurred prior to the date of Mr. Hazletts first letter, January 12, 2011. Mr. Collister would have had to provide the Anstaett Review Committee with a document from the Beezley Committee showing a finding of probable cause by majority vote in 2010, or, in the alternative, sworn testimony from a member of the Beezley committee testifying to the same. Mr. Collister did not produce or present any such evidence to the Anstaett committee. Therefore, the Anstaett committees conclusion that the Beezley committee made a finding of probable cause is wholly without support or factual basis. This constitutes an abuse of discretion by the Anstaett committee. c. Letter from Martha Coffman, General Counsel of OJA, dated April 12, 2012, Pg. 2, Par. 1, (Exhibit XX; Hazlett complaint) excerpted below:

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In this letter, Ms. Coffman makes the following statements regarding the Beezley committees findings in the Umbehr case: i. The Review Committee directed Mr. Hazlett to send a letter of caution. ii. The letter of caution stated that the Review Committee did not find a violation of the Kansas Rules of Profession Conduct regarding the complaint made against me. iii. Formal charges could not be implemented after the Review Committee decided that I did not violate the KRPC. iv. The Review Committee gave notice it found no probable cause to support the complaint against me. v. The complaint was dismissed. vi. No complaint proceeding is pending. d. Letter dated Letter dated April 13, 2011, from Mr. Hazlett to the members of the Beezley committee referencing, for the first time, his submission of the 204 report, after he had informed Mr. Umbehrs attorneys in letters dated January 12 and March 17, 2011, that the Beezley Committee had already made a finding of probable cause. (Exhibit Y; Hazlett complaint) i. In the report to the Review Committee of the Kansas Board of Discipline of Attorneys required by Supreme Court Rule 204, the Disciplinary Administrator shall contain a recommendation for or against diversion. (SC Rule 203(d)(1)(iii)) ii. It would be impossible for the Beezley Committee to have made a finding of probable cause by majority vote prior to the April 22, 2011, meeting of the Review Committee when they reviewed Mr. Hazletts 204 Report and the Umbehr case for the first time. iii. The Review Committee members shall review all materials forwarded by the Disciplinary Administrator and the Respondent when considering the suitability of the complaint and the Respondent for eligibility under the Attorney Diversion Program. (SC Rule 203 (d)(1)(iv)) iv. Again, it would be impossible for the Beezley Committee to have made a finding of probable cause by majority vote prior to reviewing all materials forwarded by the Disciplinary Administrator and the Respondent. According to Ms. Beezleys letter dated April 3, 2012, the Review Committee did not review my case until their meeting in April of 2011, which was after Mr. Hazlett made statements to my attorneys in letters dated January 12 and March 17, 2011, stating that the Review Committee had already made a finding of probable cause. v. When I asked Mr. Hazlett for a copy of the 204 Report from my case during a face-to-face meeting at the Disciplinary

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Administrators Office on Mach 9, 2012, his response was: Youll never get a copy of that report. vi. If the members of the Anstaett committee would review a copy of Mr. Hazletts 204 Report in the Umbehr case they will discover that the date on the letter proves that he did not prepare or present the 204 Report until after he made statements to my attorney in letters dated January 12 and March 17, 2011, that the Review Committee had already made a finding of probable cause. e. On March 9, 2012, during a face-to-face meeting with Mr. Hazlett at the Disciplinary Administrators Office, he admitted to me that he had reviewed my file the previous week and discovered that there had not been a finding of probable cause. He stated I made a mistake! (See Count IX; Hazlett Complaint) i. Mr. Hazlett verbally admitted that there had not been a finding of probable cause in my case. ii. This verbal admission directly contradicts the Anstaett committees finding that the Beezley committee found probable cause. f. Martha Coffman, General Counsel for the Office of Judicial Administration, states the following in her letter to me dated April 12, 2012, Page 5, Paragraph 4: (See Exhibit XX; Hazlett complaint)

The above excerpt from Ms. Coffmans letter includes the following references about the incorrect statements made by Mr. Hazlett regarding a finding of probable cause: i. References Mr. Hazletts letter to Mr. Simmons that corrects a statement made in the November 4, 2011, letter that a finding of probable cause was made regarding the complaint against me. ii. References Mr. Hazletts March 14, 2012, email to me wherein he advised that he would send a letter to Mr. Simmons correcting this incorrect statement. iii. References the March 15, 2012, letter from Mr. Hazlett to Mr. Simmons wherein he makes this correction.

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Here we have the General Counsel for the Office of Judicial Administration, Martha Coffman, describing in great detail the various steps Mr. Hazlett has taken to correct his false statement of material fact that a finding of probable cause was made regarding the complaint against me. Ms. Coffman refers to Mr. Hazletts previous claim that there had been a finding of probable cause as an incorrect statement. This description directly contradicts the Anstaett committees findings that the Beezley committee had made a finding of probable cause and Mr. Hazlett had simply erroneously admitted this mistake. g. An email dated March 14, 2012, from Mr. Hazlett wherein he acknowledged that he had informed the Complainant, Mr. Simmons in a previous letter that there had been a finding of probable cause that was later rescinded. Mr. Hazlett stated that it was his honest belief at the time, and he intended to wrote to Mr. Simmons and explain that there was not. (See Exhibit VV; Hazlett complaint and email below)
From: Stan Hazlett [mailto:Hazletts@kscourts.org] Sent: Wednesday, March 14, 2012 8:10 AM To: KeenUmbehr Subject: RE: materials

Keen. In reviewing this request I looked at the letter to Simmons. I saw that I told him that there was a finding of probable cause which was later rescinded. Again, that was my honest belief at the time. I intend to write to Mr. Simmons and explain to him that there was not. I believe that you have a right to expect that. Stan

i. Mr. Hazlett admitted to me in this email that his previous statement to Mr. Simmons that there had been a finding of probable cause in my case was incorrect. ii. Mr. Hazlett informed me that he would be correcting this statement in a letter to Mr. Simmons and stated that I had a right to expect a copy. iii. This email admitting that there was not probable cause in my case directly contradicts the Anstaett committees finding that the Beezley committee did in fact find probable cause. h. Letter dated March 15, 2012, from Mr. Hazlett to Charles Simmons admitting that his previous statement to Mr. Simmons in his letter dated November 4, 2011, that there had been a finding of probable cause was incorrect. (See letter below; Exhibit WW; Hazlett complaint)

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This letter contains several very detailed references concerning Mr. Hazletts false statements of material fact contained in his November 4, 2011, correspondence to Mr. Simmons regarding a finding of probable cause by the Beezley committee: 26

i. There is a misstatement in that letter. ii. I indicated to you that the Kansas Review Committee, at one point in time, had determined there was probable cause to believe that Mr. Umbehr had violated the Kansas Rules of Professional Conduct. iii. That was not correct. iv. . . . I was wrong. v. I am sending this letter to you in fairness to Mr. Umbehr. vi. I found out last week that there had not been a finding of probable cause. [Emphasis added] vii. I do not think it is fair to Mr. Umbehr to have anybody be under the mistaken belief that there had ever been any finding that he violated the Kansas Rules of Professional Conduct. The Anstaett committees determination that the Beezley committee had made a finding of probable cause by majority vote collides dramatically with the aforementioned statements made by Mr. Hazlett himself in his letter to the Complainant wherein he clearly admits that there had not been a finding of probable cause. Yet, the Anstaett committees report states that Mr. Hazlett erroneously admitted a mistake; this assertion is without a scintilla of factual support. Mr. Hazletts repeated admissions are not merely a slip of the tongue, but rather a concentrated effort to correct the record and retract his previous false statement about a finding of probable cause in the Umbehr case. i. Letter dated May 31, 2012, from Mr. Hazlett to my attorney, Robert A. Van Kirk, admitting that he was wrong about his previous statement that the committee had made a finding of probable cause, and apologizing for the error. (See Addendum to the Formal Complaint against Stanton A. Hazlett, and excerpt below.)

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This mea culpa from Mr. Hazlett to my attorney, Robert Van Kirk, is just another example of the profound and convincing evidence contained in the record proving that there was never a finding of probable cause in my case. This evidence is in direct conflict with findings of fact and conclusions drawn by the members of the Anstaett committee. When Mr. Hazlett himself has unequivocally admitted to me, my attorney and the Complainant that there was never a finding of probable cause in the Umbehr case and has even issued a written apology to my attorney for that misstatement it provides indisputable proof that the Anstaett committee ignored direct evidence of Mr. Hazletts repeated made false statements of material fact regarding a finding of probable cause, thereby making their decision to dismiss the complaint a clear and flagrant abuse of discretion. 6. Ed Collister, along with the three members of the Anstaett committee, failed to declare a conflict of interest and recuse themselves from the Hazlett investigation a. Ed Collister received $35,000 for payment of fees for work done for the Commission on Judicial Qualifications from Stan Hazlett/Office of Disciplinary Administrator in the year preceding the investigation (FY 20112012). i. The following is an excerpt of the annual budget letter which Mr. Hazlett sent to Chief Justice Nuss dated January 12, 2012, pursuant to Supreme Court Rule 205(a) describing the $35,000 payment to Ed Collister:

ii. I first raised the issue of a potential conflict of interest in a letter to Mr. Collister dated July 20, 2012, an excerpt of which follows below:

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iii. Mr. Collister never responded to my letter personally. However, on August 9, 2011, I received a letter from Carol Green, Clerk of the Courts, stating: . . . there is no conflict of interest. b. Special Prosecutor Ed Collister, Review Committee Chair Nancy Anstaett, and Review Committee members J. Patrick Brazil and Mikel Stout, were all named co-defendants along with the Respondent, Stan Hazlett, and others in a sixyear long legal battle (Kansas Judicial Watch et al v. Stout), which was resolved by a Federal District Court Order requiring the defendants to pay the plaintiffs $164,000 (Civil Action No. 06-4056-JAR), just prior to Mr. Collisters appointment as special prosecutor, and the appointment of the three members of the Anstaett committee. i. I raised the issue of this conflict of interest again in a letter to Mr. Collister dated October 8, 2012, and sent by certified mail, an excerpt of which follows below:

In this same October 8, 2012, letter to Mr. Collister, I included the following excerpt from State v. Logan, 236 Kan.79,86,689, P.2d 778 (1984): The standard which federal courts use is whether the charge of lack of impartiality is grounded on facts that would create reasonable doubt concerning the judges impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances. 29

ii. iii.

iv. v.

Mr. Collister never responded to my letter dated October 8, 2012. I then sent another letter to Mr. Collister by certified mail on December 10, 2012, (and copied to Chief Justice Nuss), and I concluded that letter with the following statement: I hereby formally renew my request for your recusal as special prosecutor. If you elect not to recuse yourself from this matter, then please provide me with a written explanation for why you do not believe that you have a conflict of interest which would require your recusal. Once again, Mr. Collister declined to respond to my concerns. On February 1, 2013, the Review Committee handed down their decision to dismiss the Hazlett complaint.

Supreme Court Rule 204(e) states in part: A board member may not take part in a proceeding in which a judge similarly situated would be required to abstain. The Rules Relating to Judicial Conduct, Rule 2.11, Disqualification, under (A) states: A judge shall disqualify himself or herself in any proceeding in which the judges impartiality might reasonably be questioned . . . . Mr. Collister and all three members of the Anstaett committee had a bona fide conflict of interest due to being professional colleagues of Mr. Hazlett for years and all being employed in various capacities by the Kansas Judiciary, as well as being co-defendants in a lawsuit that lasted six years and ended after the United States Supreme Court denied their request for a rehearing and an Order of Judgment was issued against them for $164,000. I maintain that an individual with knowledge of the facts and circumstances would reasonably question the impartiality of Special Prosecutor Ed Collister and the three members of the Anstaett Review Committee. Finally, by utilizing the Kansas Open Records Act, I have attempted to ascertain the source of the funds for the $164,000 judgment against the co-defendants in the Stout case. If it is eventually proven that the funds to pay this monetary judgment on behalf of the co-defendants (approximately twenty individuals in all), came from the Office of the Disciplinary Administrator, of which the Respondent, Stanton A. Hazlett is the Chief, then the conflict of interest for Special Prosecutor, Ed Collister and the three members of the Anstaett Review Committee would become even more glaring and significant.

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CONCLUSION On February 1, 2013, the Review Committee consisting of Nancy S. Anstaett, J. Patrick Brazil, and Mikel L. Stout, dismissed the 12-count ethics complaint I filed on May 23, 2012, against Kansas Disciplinary Administrator Stanton A. Hazlett. In their decision, the Anstaett committee determined that the allegations that Mr. Hazlett made false statements of material fact were not supported by any documentation contained in the 193page complaint, and 52 attached exhibits. This determination was based solely on the unsubstantiated premise that the Beezley committee found probable cause at some point in time in the Umbehr case, DA10,902. However, the Anstaett committee could not produce a single document or any sworn testimony identifying the date of the alleged finding of probable cause, the location of said meeting, or information regarding whether the vote was by majority or unanimous. Moreover, the Anstaett committee did not produce a Review Committee report documenting the alleged finding of probable cause by the Beezley Committee despite the fact that Rule B.7., requires that every action of the committee be recorded by the Chair and distributed to the Disciplinary administrator and the members of the Review Committee. There is no evidence, therefore, that any record of the alleged probable cause finding was ever produced or distributed by the Beezley committee during the pendency of the Umbehr complaint. In addition, the Anstaett committee was well aware that Supreme Court Rule 52(c) required that all witness interviews be conducted as sworn statements and recorded. However, Mr. Collister, while reportedly taking sworn statements, did not obtain sworn statements from any member of the Beezley committee specifically stating that they had found probable cause by majority vote in the Umbehr case, as required by Rule 210(c). Its also interesting to note that Mr. Collister refused to interview me or my attorney, Robert Van Kirk, thereby denying us the opportunity to provide input from our side of the issue. Without a document or sworn statement specifically testifying to a finding of probable cause by majority vote of the Beezley committee, the Anstaett committee lacked any factual basis that would support the dismissal of the complaint against Stan Hazlett. Consequently, the decision of the Anstaett committee should be deemed defective, and be remanded for reconsideration, because it is an abuse of discretion for the Anstaett committee to base their dismissal of the complaint against Stan Hazlett on facts not in evidence. Furthermore, in order to dismiss the complaint against their longtime colleague and fellow codefendant, Mr. Hazlett, the Anstaett committee had to intentionally disregard actual documentation contained in the record. This documentation included the five Review Committee reports, statements made by Martha Coffman, and descriptive letters of confession from Stan Hazlett himself, including a written apology to my attorney, Robert Van Kirk, for making a misstatement regarding the finding of probable cause. I maintain that it is an abuse of discretion for the Anstaett committee to dismiss the complaint against Stan Hazlett based on a theory that the Beezley committee found probable cause in the Umbehr case, when that theory is clearly contradicted by multiple sources of irrefutable documentation contained within the record. 31

Said another way, it is a blatant abuse of discretion for the Anstaett committee to give superior evidentiary weight to unproduced, non-existent documents, while at the same time giving absolutely no evidentiary weight to documents and reports which clearly substantiated the allegations that Stan Hazlett made false statements of material fact regarding a finding of probable cause in the Umbehr case. No legitimate tribunal would ever accept a proposition or a finding of fact which could not be supported by sworn statements or actual written documents. Likewise, no legitimate tribunal would ignore actual evidence which was available for inspection and determinative of the issue at hand. The Anstaett committees unsupported finding that the Beezley committee found probable cause in the Umbehr case the basis for their decision to dismiss the complaint against Stan Hazlett stretches credulity to its breaking point and beyond. This decision extinguishes any flicker of integrity remaining in the Kansas Disciplinary Administrators Office, a judicial branch agency so imbedded in corruption that it can no longer be trusted by reasonably-minded attorneys. To allow the current system of jurisprudence within the Disciplinary Administrators Office to continue unabated will only serve to undermine public confidence in the administration of justice in Kansas. I appeal to those honest jurists on the Kansas Supreme Court who value truth and justice above all else, and I implore you to intervene in this matter. For the reasons stated above, therefore, I pray that the decision of the Anstaett committee be set aside and the matter be reconsidered in its entirety, de novo. Respectfully submitted,

Keen A. Umbehr, SC #22047 P.O. Box 482 Alma, Kansas 66401 (785) 765.2626 (office) / (785) 765.2627 (fax) Keen@keenjustice.com Enclosure: Review Committee Report dated February 1, 2013 Copy: Carol G. Green Chief Justice Lawton Nuss; Justices of the Kansas Supreme Court Edward G. Collister, Jr., Nancy S. Anstaett, Hon. J. Patrick Brazil, Mikel L. Stout Sara S. Beezley, Robert I. Guenthner, William B. Swearer Steven R. Fabert, Martha J. Coffman, Ron Keefover, Mark L. Bennett, Jr. Robert A. Van Kirk Date: April 24, 2013 32

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