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KANSAS JUDICIAL CENTER

1kansas <!Commission 301 SW 10TH AVE., ROOM 374


TOPEKA, KANSAS 66612
on Jf ubtcial ~ualtftcattons 785-296-2913 • judicialqual@kscourts.org

• COMPLAINT AGAINST A JUDGE.

The Commission only has authority to investigate allegations of judicial misconduct or disability by
persons holding state judicial positions. The Commission has no jurisdiction over and does not
consider complaints against federal judges, lawyers, law enforcement and detention center officers,
district court clerks, and court personnel.

The Commission does not act as an appellate court and cannot review, reverse, or modify a legal
decision made by a judge in a court proceeding. Please review the accompanying brochure which
describes the functions of the Commission. Note in particular the examples of functions which the
Commission cannot perform.

Please Note: Complaint form must be typed or legibly hand-printed, dated, and signed before it
will be considered. Complaint forms may be submitted by U.S. Mail or scanned
and submitted bye-mail.

I. PERSON MAKING THE COMPLAINT


Eric M. Muathe
Full Name Inmate Number, if applicable

1410 Bitner Terrace


Mailing Address

Pittsburg, Kansas, 66762


City, State Zip Code Telephone Number

muathedotcom@gmail.com
E-mail address
Preferred Method of Communication: __ U.S. Mail L E-Mail
II. JUDGE AGAINST WHOM COMPLAINT IS MADE

Judge lack Burr Sherman County, Goodland


Full Name County or City

Type of Judge(checkone): __ Supreme Court Justice __ Court of Appeals Judge


District __ District Magistrate __ Municipal
__ Pro Tempore ~ Other --=-Se=n=io=r:....:J::...:u:.::d:og.=..e
_

Page I 1
ill. COURT CASE INFORMATION

lfthe complaint involves a court case, please provide:


-Case Title: Muathe, et al. vs. Kurtis Loy, et al. Case Number: 2015-CV-79P
-Your Relationship to the Case: L Plaintiff/Petitioner __ DefendantlRespondent
Other
-----------------------------------

IV. STATEMENT OF FACTS


In the following section, please provide all specific facts and circumstances which you believe
constitute judicial misconduct or disability. Include names, dates and places which may assist
the Commission in its evaluation and investigation ofthis complaint.

Please see attached letter copied to Judge Jack Burr and Kindly treat it as a judicial complaint
against Judge Jack Burr.

I request that you review this complaint through the prism of your commission's 2007 annual
report.

The Kansas Commission on Judicial qualifications published on its 2007 annual report an
example of conduct found to be improper by stating: "A judge, who following an alternative
procedure which resulted in pro se pleadings being returned unfiled, was publicly ordered to
cease and desist from establishing procedures which prevent filing of pleadings with the clerk
of the court".

If additional space is required, attach and number additional pages.

Page I2
May 4th, 2016

Judge Richard Smith


P. O. Box 218
Mound City, Kansas, 66056

Re: Wilmington Trust N.A.,vs. Eric Muathe


Case Number: 2014-CV-86P

LETTER REQUESTING CLARIFICATION AND REQUEST FOR 30-DAY EXTENSION TO FILE


ANSWERANDjOR COUNTERCLAIM

Dear Judge Richard Smith,

On Monday May 2nd, 2016 I received your "Order on Pending Motions" dated April

28th, 2016. Additionally, on Monday May 2nd, 2016 I received a Journal Entry from your

attorney, Stephen Phillips, in Crawford County Case Number 2015-cv-79P styled Eric

Muathe, et al. vs. Judge Kurtis Loy, et al. (where you are also a Defendant).

As per the filing restrictions now ordered by Judge Jack Burr after a hearing on April

18th, 2016 in Crawford County Case Number 2015-cv-79P, Inow have to ask an unknown

third party if this letter can even be made part of the Court file in this case. It is also my

understanding, as per Judge Jack Burr's instructions, that it is not up to you to decide

whether this letter can be filed or not since you are a Defendant in the case, and the one

who asked for and was granted filing restrictions against me, and four other individuals.

See the attached portion of the April 18th, 2016 transcript.

With these filing restrictions the whole procedural process is now very confusing.

I don't understand how to proceed and need clarification.


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I AM ALSO EXTREMELY TERRIFIED TO PROCEED SINCE IF I DON'T FOLLOW

THE FILING RESTRICTIONS TO THE LETTER I COULD BE HELD IN CONTEMPT OF

COURT AND PUNISHED FOR IT.

The other pressing question here is; DOES JUDGE JACKBURR HAVE

JURISDICTION IN THIS CASE, OR ANY OTHER CASE HE IS NOT ASSIGNED TO - FOR

THAT MATTER, TO IMPOSE FILING RESTRICTIONS???

In your April 28th, 2016 order you stated; "that pertains to case number 2015-CV-

79p and has nothing whatsoever to do with the instant matter, 2014-CV- 80 6P (sic)". I

don't understand. Does that mean that the filing restrictions you were granted in case

number 2015-cv-79p have nothing to do with this case even though you specifically,

knowingly, asked for and were granted across-the-board blanket filing restrictions for any

and all cases, and for any and all pleadings Ihave filed, retroactively, since September 28th,

2015 onwards???

Because of the wording on the proposed Journal Entry (which is attached to this

letter) in Crawford County Case No. 2015-cv-79P (again, where you are also a Defendant)

it seems the filing restrictions you asked for and have been granted by Judge Jack Burr

against me (and 4 other individuals) are intended to be across the board and somehow

retroactively effective as of September 28th, 2015 when you filed your motions for

sanctions and deliberately designed to encompass any and all pleadings of any kind that I

might have already filed and would like to file in the future in any Kansas District Court -

like this very letter/communication.

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I have filed pleadings since September 28th, 2015 in this very case. All pleadings

have been proper yet since I did not ask for leave of Court to file these pleadings I would

now be found to be in contempt of court. This is a very serious issue. This also means the

recent Motion for Continuance which I had faxed to the Clerk of the Court and which you

granted did not follow the new retroactive filing restrictions guidelines. Given the late

notice of hearing; how, and who, would I have requested for a review if I could file a mere

Motion for Continuance due to an unexpected death of a family friend? How long would it

have taken to review this and given the time constraints at the time how would this have

affected my request for continuance?

I am totally confused and don't understand how to proceed since this completely

changes long established rules of civil procedure, severely prejudices me in defending this

case and clearly gives an advantage to the Plaintiff since they now don't have to respond to

any pleading I file until ordered by the Courtj"Pleadings Reviewer" while denying my

constitutionally and statutorily protected due process rights.

I also object to the sanctions you now have against me, and more so because I

believe you cannot afford me a fair trial in this matter. Most reasonable people once

brought up to speed on the facts and circumstances around the case will find that you

cannot be reasonably be found to impartial.

"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

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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". Smith v. Printup, 262 Kan. 587, 1997, at Syl. 8

Ialso have to state that you are also damaging me since Inow have to spend more

time, effort and money making sure Ihave a record of all the pleadings Isend you by being

forced to use certified mail. You are also monetarily damaging me because Ihave been

forced to hire an attorney to handle some of my legal matters due to the filing restrictions

you asked for and now have been granted.

I am now scared to file anything (even though the right to petition and freedom of

speech - verbal or written - are federally protected rights) due to fear of being found in

contempt for having a legal opinion, approach, theory, or claim this Court or an unknown

"Pleadings Reviewer" might now like.

What, and where, is the properly laid out process to ask for a review of any denial to

have a pleading made part of the court record? Can Iask for a reconsideration? Who should

Iappeal to and what is the process involved? How would Igo about asking for a review of

any filing denial? Would Ihave to ask someone else to review if Ican ask for a review? In

other words would Ihave to come up with yet another pleading to ask if Ican even get an

opportunity for a review of the initial reviewer's filing denial? Who would that be sent to?

What are the timelines for a response when a review is requested? What happens if the

review is not done in a timely manner and how would Iproceed?

As a defendant in the case and also given that you requested and were granted filing

restrictions you cannot now also be the one to review whether any pleading Iwould to like
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file should be allowed. How many judges are assigned to this case? I don't understand how

to proceed. Keep in mind that Ihad filed a "Motion For Judge Richard Smith to Withdraw

Sanctions Motion" which you ordered in your April 28th, 2016 "Order on Pending Motions"

that "SAID PLEADING STICKEN FROM THE COURT FILE AND REMOVED BY THE

CLERK."

Can I even directly request the clerk of the Court for an order, pursuant to Supreme

Court Rule 113, for a 14- day extension* to file an answer and or counterclaim without first

asking for permission? And who would Iask for this permission? Would the request be

made part ofthe Court file? Would the "Pleadings Reviewer's" reply be made part ofthe

Court file? Would this request to file also include oral arguments? If not, why? What is the

procedure to ask for a review of any denial to file a pleading? What jurisdiction would this

reviewer have over cases they are not assigned to? How long would they take to respond?

What happens if the response allowing or disallowing me to file for an extension (as an

example) is not done in a timely manner? How would time standards now be calculated

given that Ihave to ask to even file a pleading - irrespective of what the pleading is? Where

is the due process??? How can this be a fair and level playing field for all sides involved?

Where is the precedent for this kind of improvised procedure?

*A defendant may unilaterally obtain a 14-day Clerk's Extension, which is a one-

time, automatic extension from the clerk of the district court. The party seeking the

extension must prepare an order for the clerk's signature, and serve copies of the signed

order on all other parties. (Kan. Sup. Ct. R. 113.)

Why am Ibeing prevented from directly contacting the Clerk of the Court?

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I WOULD LIKE TO FILE FOR A REQUEST TO EXTEND MY ANSWER DATE BY 30

(THIRTY) ADDITIONAL DAYS. THE CURRENT DUE DATE IS SET FOR MAY 12TH, 2016.

BECAUSE OF FILING RESTRICTIONS I DON'T KNOW WHO AND HOW I SHOULD ASK TO

REVIEW IF I CAN EVEN FILE THIS REQUEST.

What authority or law can be used to justify the notation that a litigant should have

their hands tied behind their back, in a legal fight, and that should they want to proceed

could only do so with an attorney? Conversely, where did the legislature intend for citizens

ofthis state/country to only proceed to have their day in Court only if they procured the

services of an attorney? Doesn't the annual report published by the Kansas Commission on

Judicial Qualifications in 2007 show that a Kansas Judge was ordered to cease and desist

from imposing filing restrictions on a Pro Se litigant? See attached Exhibit? Aren't the Judge

Jack Burr filing restrictions not a "copy and paste" job of the very proposed filing

restrictions guidelines** that were rejected in late 2014? What about the issue of

retaliation and violation of Supreme Court Rule 223 as seen in the Kansas Supreme Court's

ruling injarvis v. Drake, 830 P.2d 23 (Kan. 1992)?

** The guidelines sought to balance management of dockets while respecting

constitutional rights of individuals to have access to the courts, said Edward Bouker, a

district court judge serving Ellis, Gove, Rooks and Trego counties and a member of the state

committee. "The guidelines do not propose a blanket restriction on any party with a history of

malicious or repetitive filings," Bouker said. Source:

http: ((m.cjonline.com (news (state 12014-12 -28 (kansas-courts- weigh -response- frivolous-

litigants#gsc.tab=O

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The transcript of the hearing held on April 18th, 2016 in Case Number 2015-cv-79P

by Judge Jack Burr asked your attorney, Stephen Phillips, to identify a third party agreeable

to all sides in the case who would now be reviewing whether or not we could proceed with

using the court system by requesting beforehand whether or not we could file any pleading

or law suit. In his attached proposed Journal Entry your attorney, Stephen Phillips,

completely ignored those instructions and now we are obviously confused as how to

proceed.

I am not sure if the Plaintiff in this very case wants it to be marred with due

process issues and risk a higher Court ordering a new trial - down the timeline.

I have copied Judge Jack burr in this matter and your attorney, Stephen Phillips, so

they can enlighten us as to how I should proceed.

Help! How do I proceed without knowing what the "new" rules of procedure are and

how is it not a conflict of interest for you to now have sanctions against me and yet be a

neutral judge in this case?

STATUTORY & FEDERAL CONSTITUTIONAL ISSUES

VIOLATION OF FIRST AMENDMENT RIGHTS. DUE PROCESS RIGHTS

AND FREEDOM OF SPEECH RIGHTS

The right of petition is expressly set out in the First Amendment:"Congress shall

make no law ... abridging ... the right of the people ... to petition the Government for a

redress of grievances." - from the First Amendment.

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In 1983, the Supreme Court's opinion in Bill johnson's Restaurants, Inc. v.

NLRB set out the principle that "the right of access to the courts is an aspect of the First

Amendment right to petition the Government for redress of grievances."

In a June 2002 decision, BE&K Construction Co. v. National Labor Relations

Board, the high court, though not ruling on First Amendment grounds, nevertheless noted

that it had long viewed the right to sue in Court as a form of petition.

"We have recognized this right to petition as one of the most precious of the

liberties safeguarded by the Bill of Rights," Justice Sandra Day O'Connor wrote for the

Court, "and have explained that the right is implied by the very idea of a government,

republican in form."

O'Connor further observed that the First Amendment petition clause says

nothing about success in petitioning - "it speaks simply of the right of the people to

petition the Government for a redress of grievances."

U. S. SUPREME Court ON A NEUTRAL JUDGE REQUIREMENT

As construed by the courts, it includes an individual's right to be adequately

notified of charges or proceedings, the opportunity to be heard at these proceedings, and

that the person or panel making the final decision over the proceedings be impartial in

regards to the matter before them. Goldberg v. Kelly, 397 U.S. 254, 267 (1970).

Or, to put it more simply, where an individual is facing a deprivation of life, liberty,

or property, procedural due process mandates that he or she is entitled to adequate notice,

a hearing, and a neutral judge.


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The requirement of a neutral judge has introduced a constitutional dimension into

the question of whether a judge should recuse himself or herself from a case. Specifically,

the Supreme Court has ruled that in certain circumstances, the due process clause of the

Fourteenth Amendment requires a judge to recuse himself on account of a potential or

actual conflict of interest. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co.

(2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia

could not participate in a case involving a major donor to his election to that court. Jess

Bravin and Kris Maher (Iune 8, 2009). "Justices Set New Standard for Recusals". The Wall

Street Journal. Retrieved 2009-06-09.

Petitioning government, or using Court for redress, resolution of allegations, and to

settle disputes is a civil duty that is protected by federal and state constitution. Access to

the Courts is also protected by constitutions of the Federal government, the state of Kansas,

and also by Common law. For Kansas see K.S.A 2203001(c) and K.S.A 60-1206(a).

KANSAS COMMISSION ON JUDICIAL QUALIFICATIONS PUBLICLY CAUTIONS


JUDGE FOR IMPOSSING PRO SE FILING RESTRICTIONS

The Kansas Commission on Judicial qualifications published on its 2007 annual

report an example of conduct found to be improper by stating: "A judge, who following an

alternative procedure which resulted in pro se pleadings being returned unflled, was

publicly ordered to cease and desist from establishing procedures which prevent

filing of pleadings with the clerk of the court". See attached Exhibit.

Page 9 of 32
As per the filing restrictions you now have against me I can't even file an answer in

this case without first requesting permission - from an unknown third party - to do so and

attaching the proposed pleading. But my answer draft is not ready at this point. What do I

do and how will it affect the statutorily calculated due dates.

As per the filing restrictions you now have against me I can't even file any

counterclaim in this case without first requesting permission - from an unknown and yet to

be identified third party - to do so and attaching the proposed counterclaim. Do I now have

to include an affidavit stating that any counterclaim has merit? How will that affect the due

date for filing a counterclaim? Since the Plaintiff did not file an affidavit stating that this

petition was not unmeritorious why should I now be forced to ask for permission to file a

counterclaim? What do I do and how will it affect the statutorily calculated due dates to file

any counterclaim?

A simple ruling that the filing restrictions do not apply to this case might help

clarify things.

Who should I send pleadings for review to? Should I copy the request to you too?

Should I copy the request to the Plaintiffs attorney - even though as per your filing

restrictions the opposing litigant need not even bother responding to any pleading I file

until ordered by the Court - or more accurately until ordered by the third party reviewer?

Should I copy the clerk of the Court so the clerk of the Court can make a notation that a

review was requested (otherwise where would the record that a review was requested be

kept as is the norm)? Should I copy Judge Jack Burr even though he is not assigned to this

case? How do I perfect an appeal down the road when the record does not fully contain all

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the pleadings in the case? What is the need to burden other district judges by asking them

to review if pleadings can be filed?

Since you requested the sanctions and your attorney filed and was granted the

sanctions on your behalf I would also imagine you can now clarify the procedure I am to

use, and also indicate how things like due dates are to be considered given that I now have

to take extra steps and get permission first before filing anything in any Kansas Court.

I request that the Clerk of the Court be allowed - by the unknown reviewer of this

letter - to make this letter part of the court file with acknowledgment / confirmation from

the Clerk of the Court that it has been made part of the Court file.

Sincerely,

Eric M. Muathe
1410 Bitner Terrace, Pittsburg, Kansas, 66762.

CC: ./ Judge Jack Burr

CC: ./ Clerk of The Court

CC: ./ James Nelson, Kozeny and McCubbin, L.c.

CC: ./ Assistant Attorney General, Stephen Phillips

CC: ./ Kansas Commission on Judicial Qualifications

Page 11 of 32
TN THE DISTRICT COURT OF CRAWFORD COUNTY, K!.\NSAS

ERIC M. !\'lUATHE, et al., )


)
Plaintiffs, )
)
vs. ) Case No. lS-CV-79P
)
HONORABLE KURTIS LOY, et al., )
)
Defendants. )
)

RULE 170 NOTICE

TAKE OnCE that on this 28th day of April, 2016 that pursuant to Supreme Court

Rule 170, a cop)' of this Notice and the attached proposed Journal Entry was served upon Pro Se

Plaintiffs and counsel of record as listed in the certificate of service.

Pro Se Plaintiffs and counsel of record shall, within fourteen (14) days after service is

made, serve on the coun el preparing said Journal Entry any objections in writing. At the

expiration of the time for serving objections, counsel preparing said Journal Entry will submit

the original, together with any objections received, to the judge. A copy of Rule 170 is also

attached.

Page 12 of 32
Respectfully submitted,

OFFICE OF A TTORl'lEY GENERAL


DEREK SCHMIDT

Isl Stephen Phillips


Stephen Phillips, No. 14130
Assistant Attorney General
Memorial Bldg., 2nd Floor
120 SW io" Avenue
Topeka, Kansas 666J 2-1597
Phone: (785) 296-2215
Facsimile: (785) 296-6296
Attorney for Defendanrs Loy, Wachter, Fleming,
Fleming, Jack, Lynch. Russell, Smith, Sanders,
Hazlett, Grillot and Schmidt.

Page 13 of 32
CERTIFICATE OF SERVICE

Thi . is to certify that a copy of the above and foregoing was served by depositing same in
the United Stales Mail, first class po tage prepaid, the 28th day of April, 2016, to:

Eric Muathe Noah Day


P.O. Box 224 P.O. Box 224
Pittsburg, KS 66762 Pittsburg, KS 66762

Kasey King James Beckley Jr.


P.O. Box 224 P.O. Box 224
Pittsburg, KS 66762 Pittsburg, KS 66762

Travis Carlton Jim Emerson


P.O. Box 224 Crawford County Counselor
Pittsburg, KS 66762 111 East Forest, 2nd FL
Girard, KS, 66713
oah Day
960J lliss Ave., Apt. 1527
Denver, CO 80231

and hand delivered to:

Carey Barney, Assistant Attorney General.

/sl Stephen Phillips


Stephen Phillips

Page 14 of 32
IN THE DISTRICT COURT OF CRAWFORD COUNTY, KANSAS
I
ERIC M. MUATHE, et at., )
)
Plaintiff, )
)
VS. ) Case No. 15-CY -79P
)
HONORABLE KURTIS LOY, et al., )
)
Defendants. )
)

JOURl'l"AL ENTRY DISMISSING CASE


AND
IMPOSING FILING RESTRICTIONS

Now on this 18th day of April, 20]6, this matter comes before the Court on all pending

motions.

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

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

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

(Disciplinary Administrator), 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 all Judicial Qualifications Panel HA" 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 given adequate and proper

notice of this hearing, with notice served February 24, 2016, with said Notice stating that the

Attachment A

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hearing would take up "all pending motions." Plaintiffs filed <I Motion for Continuance on April

2,2016, to which defendants responded all Apri I 8, 2016, asking that a continuance be denied.

The COUlt did not and does not grant a continuance, and proceeds to consider the case.

Plaintiffs also served on April 2,20]6, a Motion for Change of Judge. Plaintiffs,

however, by not appearing at this hearing have waived their right to a hearing under K.S.A. 20-

311d. Moreover, K.S.A. 20-311 f limits the time for filing a motion for change of judge to

"within seven days after receiving written notice of the judge before whom the case is to be

heard." This judge has been assigned to this case since August 13,2015. The Court finds

Plaintiffs are procedurally barred from pursuing this motion.

Plaintiffs served on March 17,2016, a Motion for Order of Dismissal. Although

Plaintiffs later sought to withdraw this motion, the Court finds that the Motion is in substance a

notice of voluntary dismissal under K.S.A. 60-241 (a)(1). "[Wlhen a document seeking dismissal

is filed within the time frame set out in K.S.A. 60-241 (a)(l), it wiil operate as an automatic

dismissal of the action upon filing." Smith v. State, 22 Kan. App.2d 922, 926 (1996). This

matter was, therefore, dismissed without prejudice on March 17, 20J 6, and the Court in its

discretion finds no reason to reinstate the action.

Defendants Loy, Wachter, Fleming, Fleming, Jack, Lynch, Russell, Smith, Sanders,

Hazlett, Grillot, and Schmidt have pending a Motion for Sanctions, brought pursuant to K.S.A.

60-211, in which they seck filing restrictions against Plaintiffs. In Cooter & Cell v. Hartmorx

Corp., 496 U.S. 384, 398 (1990), the U.S. Supreme Court concluded that "petitioner's voluntary

dismissal did not divest the.District Court of jurisdiction to consider respondents' Rule 11

motion." In an unpublished decision, the Kansas Court of Appeals adopted Cooter in, Ireland v.

Byrne, No. J 01 ,739,2010 WL 348287 (Kan. App. 20 I0). The Court, therefore, finds that

Page 16 of 32
Defendants' Motion for Sanctions is properly before this Court despite Plaintiffs' voluntary

dismissal of the case.

The Court then takes under consideration Defendants' Motion for Sanctions. The Court

first takes note that Plaintiffs do not appear to oppose the motion. Muathe, Day, King, Beckley,

and Carlton (hereinafter collectively Pro Se Litigants), either acting on behalf of an

unincorporated association known as Summary Judgment Group, or acting on their own

behalves, purported to bring this case as a class action on behalf of signators of a grand jury

petition. As is stated in Defendants' Motions to Dismiss and Defendants' Responses to various

motions, Pro Se Litigants' Petition and subsequent pleadings in this matter are utterly frivolous.

They have obviously not done even a modicum of meaningful legal research, and have utterly

failed to attempt to meet any of the pleading or procedural requirements for a class action. This

case is harassment of the defendants. For most of the Plaintiffs, this is not their first venture into

harassing litigation. Below is a summary of some of the more abusive cases involving these

litigants. Copies of some pleadings from these cases were attached as Exhibit 1 to the Motion

for Sanctions, and this Court takes judicial notice of them. I These cases contain frivolous

pleadings, repeated motions to disqualify judges, and references to the UCC and sovereign

citizenship. When several of the cases were resolved, the judges. imposed sanctions, including

filing restrictions within those individual cases. Several were stricken from the public record due

to abusive content. Many of Muathe's pleadings contain "sovereign language." On at least two

occasions Muathe filed suit against a judge who was presiding over a case, then used that suit as

grounds to seek recusal of the judge.

J This is not an exclusive list of all cases filed by or against Pro Se Litigants.

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1. Cases involving Eric M. Muathe:

IOSC134P, Muathe v. Routhnieir Sterling lnc.: Muathc sued the company for
violating debt collection practices, but voluntarily dismissed after a "voluntary out
of court settlement" was reached. Muathe included language in his voluntary
dismissal notice, "Comes now, Plaintiff, Eric M. Muathe@ WITH ALL RIGHTS
RESERVED, WITHOUT PREJUDICE-UCC 1-207 (KSA 84-1-207) UCC 1-308
(similar to KSA 84-1-308) and UCC 1-103.6, Sui Juris ..."

10SC139P, Muathe v. AJ Wachter: Muathe sued Judge Wachter for


"incompetency as a judge" for $3,242.72. J. Wachter had allowed a debt collector
judgment against Muathe. Dismissed on judicial immunity.

IOSCI40P, Muathe v. John Gutierrez (local attorney): Muathe sued for


"wrongful arrest" when Muathe was named in a child support warrant. Gutierrez
did child support collection. The petition refers to the court as a "kangaroo
court." The case was dismissed on 4-21-] I when Muathe failed to appear; the
Court found estoppel, lack of venue.

1OSCi51 P, Muathe v. Berman & Rabin: Muathe sued collection attorneys for
"making false and misleading representations." The case was originally
dismissed on 12-2-10 by Pro Tern Judge Fielder for lack of jurisdiction. Then, on
12-6-10 Muathe wrote a letter to J. Fielder, alleging conflicts of interest and
threatening judicial complaint. On the same day, Muathe filed a motion for
disqualification. The case was reopened and reassigned. On 5-31-11 there was a
court trial; however, Muathe refused to be sworn in. Also all 5-31-11, Muathe
filed an objection to "assembly line scheduling" using the language Eric M.
lvTuathe@ WITH ALL RIGHTS RESERVED, etc. "a sovereign conscious free
being" with the UCC citations again. On 6-23-11, the Court issued a
memorandum opinion finding "Mr. Muathe had filed his claim against the law
firm in bad faith and for the purposes of harassment." The Court awarded
$2,397.50 in attorney fees to defendants.

11SCGOP, Muathe v. Young, Williams CSE: Muathe sued the child enforcement
agency for "damages caused by frivolous claims leading to financ ial injury,
character defamation, public humiliation and more importantly, undue emotional
stress and mental anguish" seeking $3,900 damages. Muathe used a UCC
signature again. On 6-9-11 both parties appeared and the case was dismissed with
prejudice. Muathe wrote a letter to Judge Nuss on 6-10-11 re: Pro tern Judge Rick
Smith.

12LM356P, Fifth Third Bank v, Muathe: Muathe was sued for debt related to a
vehicle. This case had multiple judges due to motions to disqualify from Muathe.
Below' is a timeline, showing tho repeated frivolous motions by Muathe to avoid
final judgment:
Case was transferred from Johnson County, KS to Crawford County, KS.
9-6-13 Muathe Motion to Disqualify Judge Wachter

Page 18 of 32
9-23-13 Order granting Motion for Disqualification
9-26-13 Assigned to Division 5.
11-19-13 Muathe Motion for Disqualification of Judge
1-3-14 Order denying Motion for Di qualification. Judge Lay remains on case.
1-16-14 Muathe Motion for Disqualification of Judge and Affidavit in Support
1-21-14 Letter Order denying Motion for Disquali fication. Judge Lay remain on case.
1-31-14 Muathe Second Motion for Disqualification of Judge Due to New Information
1-31-14 Muathc Objection to All Proposed Scheduling
2-6-14 Muathe Second Motion (really fourth) for Disqualification of Judge Due to New
Information Plus Affidavit in Support
2-7-14 Muathc Motion to Vacate All Orders and Rulings
2-1 1-14 Memorandum and Order Denying Motion for Disqualification
2-24-14 Muathe Notice of Appeal
3-13-14 Muathe "Letter Pursuant to Kansas Supreme Court Rule 162:, to Justice Nus,
J ustice Johnson"
4-1-14 Muathe Motion for Change of Venue
5-5-14 Muathe otice of Hearing/Notice of Commencement of a Federal Quiet Title
Action
7-10-14 Memorandum and Decision disposing of multiple pending motions, denying
Defendant's motions and granting Plaintiffs replevin/possession.
7-18-14 Muathe Motion to Strike Memorandum and Decision
7-18-14 Muathe Objection to Memorandum and Decision
7-18-14 Muathe Motion for Disqualification of Judge (fifth motion to disqualify Lay,
sixth overall)(alleges he sued Lay the day before in 14CV75P) Lay recuses.
7-18-14 Muathe Notice of Appeal
8-11-14 Assigned to Judge Lynch
8-2 J -14 Muathe Motion to Object to Judicial Assignment
J 0-6-14 Muathe "Mandatory Judicial Notice" requesting judicial notice of various
records concerning conflicts of interest (Judge Loy)
I 0-9- J 4 M uathe Motion for Stay of Enforcement of Judgment
11-21-14 Memorandum and Ruling by Judge Lynch that denies multiple pending motions
of Defendant.
I J -26-[4 Muathe Notice of Appeal
11-26-14 Muathe Motion for Reconsideration, Request for Oral Arguments, Stay of
Enforcement of Judgment
12-1- J 4 Muathe Objection to Memorandum and Ruling
12- J -14 Muathe Second Motion for New Trial Due to New Evidence
12- J -J4 Muathe Motion for Disqualification of Judge (seventh overall)
12-3-14 Muathe Motion to Vacate All Judge Lynch Orders and Rulings
J 2- J 1-14 Muathe letter to Judge Lynch, accusing him of various ethical violations, copies
to Chief Judge Wachter, Departmental Justice #4, Commis ion on Judicial Ethics, Chief
Justice Lawton Nuss, Mark Werner
1-26-15 Muathe Second Motion to Vacate All Judge Oliver Kent Lynch Orders
1-26-15 Muathe Motion for Plaintiff to Post Bond or in the Alternative to Return thc
Subject Matter Vehicle
1-26-15 Muathe Objection to Writ of Execution Order and Procedure

Page 19 of 32
1-26- 15 M uathe Motion for Determination of Economic Conflict of Interest (requesting
ruling that attorney Marii!0.lVerner and Judge Lay have economic conflicts of interest)
Lynch recu es.
2-20- 15 Judge Russeli assigned.
4-29-15 Muarhc Motion for Disqualification of Judge (eighth overall)
5-7-15 Muathe Motion for Disqualification of Judge Plus Affidavit in Support (ninth
overall)
6-5-IS Motion for Disqualification Granted.
6-17-15 Judge Smith assigned.
7- I-IS Journal Entry on Post-Trial Motions, denying all Defendant's Illations, and
ordering sanction of filing restrictions in that case.
7-9-\5 Muathe Post-Void Order Motion for Reconsideration
7-10- 15 Order Denying Post-Trial Relief and Limiting Further Pleadings in that case.

J 2SC90P, Muathe v, Berman & Rabin: Muathe sued collections attorneys for
violation of FDCPA 2. Muathe wrote to Pro Tern Judge Maradeth Frederick
wanting a new judge. The case was dismissed for lack of jurisdiction and
improper venue.

13CV 47P, Kasey King, Noah Day, Mike King, Eric Muathe, Julie Stover, Lester
Moore v, Crawford County District Court: Muathe and others sued the Court for
public humiliation and embarrassment, slander, libel, age discrimination, equal
protection, due process, false advertising, political discrimination. Page 3 of the
complaint contains "sovereign citizen" language. Monetary demand was for
$SOO,OOO. The case was dismissed on 7-31-13.

14CV28P, Muathe v, Wells Fargo BankNA: This small claims appeal was
dismissed by Judge Smith and lots of post-trial motions were filed by Muathe.
The Court eventually restricted filing of future pleadings ill the case as a

sanction.

14CV7SP, Muathe v, Lay, Wachter, Fleming, Fifth Third Bank, Law Office oj
Mark Werner, Thompson Coburn LLP, Mark A. Werner. David Mangian: 22
page petition and attachments for relief in the form of quo warranto. Allegations
were of various contlicts of interest and requested a restraining order that
Wachter, Lay and Fleming can never hear his cases, and that the vehicle replevin
action in 12LM356P be stayed. On 5-13-15 the case was dismissed without
prejudice on merits.

14CV86P, Wilmington Trust Company v. Muathe et a1.: This is a pending


foreclosure action of Muathes home. Due to Muathe motions to disqualify, the
case has been assigned to judges Wachter, Lynch, Russell, and Richard Smith. A
current motion for disqualification of Judge Richard Smith is pending that alleges
Muathe has sued Judge Smith now in this case (15CV79P), which was filed
shortly after Judge Smith was assigned. The Motion also alleges Smith filed his

2 Fair Debt Collection Practices Act

Page 20 of 32
financial disclosure late, and other ethical complaints related to church, boards,
etc.

14SC2P, Muathe v. Wells Fargo Bank NA et al: Muathe sued for clouding his
title related to mortgage. Dismissed on 2-14-14 in favor of defendant after
hearing.

J 5MR2P, Muathe, Day and King v. Lay, et 01. Petition against many of the
defendants in this case making many of the same allegations. Petition sought a
grand jury. Case sealed after being dismissed.

Federal D. Kan. 14-2207, Muathe v. Fifth Third Bank, et 01. Muathe, in a fifty-
page Complaint, sued twenty-two defendants over the repossession of his car.
The federal court dismissed for failure to meet pleading requirements, stating:

Plaintiffs disjunct and rambling complaint spans fifty pages and


two hundred and thirty-nine paragraphs directing his claims at
various combinations of the twenty-two defendants. Much of
plaintiff's shotgun approach states only conclusions. Where it docs
allege facts, it fails to connect them to valid legal claims. The
complaint frequently states that certain defendants have violated
certain statutes without pleading any associated factual allegation
of conduct. Throughout the complaint, plaintiff consistently fails to
either adequately allege conduct or to match alleged conduct with a
cognizable cause of action.

A copy of the federal district court's decision, 2014 WL 5341984, is attached as


Exhibit 1 to this Motion. Muathe has appealed to the Tenth Circuit, /5-3019.

2. Cases involving Kasey King (in addition to 13CV47P and 15lvlR2P):

I I SCI48P, King v. Experian: In small claims court, King sued Experian, a


consumer credit reporting agency, after opting out of a class action lawsuit. As
part of his case King filed various letters/motions to disqualify Judge Pro Tern
Rick Smith and Senior Judge Janice Russell. The case was dismissed on3-29-12
finding no proof of damages and granting statute of Iimitations defense.

12CV79P King v, Experian: appeal from II SC148P. As part of his appeal, King
filed for writ of mandamus against Judge Russell and Small Claims Court and
filed an "Objection in the Nature of a Writ of EITOr."Case was dismissed with
costs against King. The Court noted, "Plaintiff is once again urged by the COUIi
to seek legal advice from competent counsel before filing cases pro se."

I2SC 130P, King v. Corporation Service Company: sued for emotional


stress/mental anguish caused by negative credit reporting. On 3-27-13 the case
was dismissed by Plaintiff.

Page 21 of 32
3. Cases involving Noah Day (in addition to 15MR2P):

12CY 103P, Day v SRS et al: Day sued Crawford County District Court and SRS
claiming he was sexually abused while in foster care as a child many years ago.
Case dismissed on 8-28-12. Objection to Journal Entry overruled. 9-25-12

15SC71 P, Day v, Fleming: Day sued Judge Lori Fleming for "breach of contract"
over an email she allegedly sent frOI11her office to a radio station concerning ads
run by the station. Day was not the person who contracted for the ads. Case
pending.

15SC85P, Day v. Fleming: Day sued Judge Lori Fleming for slander over all
ernail she allegedly sent from her office (0 a radio station concerning ads run by
the station. Day was not the person who contracted for the ads and he was not
mentioned in the emails, Case pending.

4. Cases involving James Beckley Jr.:

15CV38P, Community National Bank v. James Beckley Jr.: Home foreclosure


case by bank with multiple motions/affidavits by Beckley for change of judge,
Motion for Writ in Nature of Mandamus and Stay of Hearings, Motion for
Assignment of Case to Departmental Justice, Motion to Vacate all orders pending.

5. Cases involving Travis Carlton:

15CV4G, Carlton v. KS Dept of Revenue: Petition for judicial review of driver's


license suspension. Motions for change of judge filed all 5-26-15,6-19-15,9-10-
IS. Carlton also filed Motion for Writ in Nature of Mandamus. To date, motions
for change of judge denied, and case is pending.

14CV7P, Carlton v, Toby Miller et 01: Carlton sued over lost profits from Vapor
Stop business. Carlton ha filed multiple pleadings that were held to be "a nullity,
and inappropriate as they contained vile, abusive and threatening statements."
Pleadings stricken from record and public file.

IJ 4448, Carlton v. Wachter, et al., This is an original mandamus action Carlton


tiled before the Kansas Supreme Court seeking to prevent Judge Wachter from
presiding over 15CV4S. The case is pending, with no order for response yet.

Defendants ask the Court to impose sanctions pursuant to K.s_A. 60-211, which provides,

in relevant pan:

(b) Representations to the court. By presenting to the court a pleading, written


motion or other paper, whether by signing, filing, submitting or later advocating
it, an attorney or unrepresented pany certifies that to the best of the person's

Page 22 of 32
knowledge, information and belief formed after an inquiry reasonable under the
circumstances:

(I) It is not being presented for any improper purpose, such as to


harass, cause unnecessary delay or needlessly increase the cost of
litigation;

(2) (he claims, defenses and other legal contentions are warranted
by existing law or by a nonfrivolous argument for extending,
modifying or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if


specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the


evidence or, if specifically so identified, are reasonably based on
belief or a lack of information.

(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court
determines that subsection (b) has been violated, the court may impose an
appropriate sanction on any attorney. Jaw firm or party that violated the statute or
is responsible for a violation committed by its partner, associate or employee. The
sanction may include an order to pay to the other party or parties that reasonable
expenses, including attorney's fees, incurred because of the filing of the pleading,
motion or other paper. A motion for sanctions under this section may be served
and filed at any time during pendency of the action, but must be filed not later
than 14 days after the entry of judgment.

The purpose of imposing sanctions under K.S.A. 60-211 is to deter repetition of conduct. Wood

v. Groh, 269 Kan. 420,430,7 P.3d 1163 (2000). Courts take the following factors into

consideration when determining whether (0 sanction a party and what kind of sanction to impose:

(I) whether the improper conduct was willful or negligent;


(2) whether it was part of a pattern of activity or an isolated event;
(3) whether it infected the entire pleading or only one particular count or defense;
(4) whether the person has engaged in similar conduct in other litigation;
(5) whether it was intended to injure;
(6) what effect it had on the litigation process in time or expense;
(7) whether the responsible person is trained in the Jaw;
(8) what amount, given the financial resources of the responsible person, is
needed to deter that person from repetition in the same case; and
(9) what amount is needed to deter similar activity by other litigants.

Page 23 of 32
rd. at 431. 'The district court has the discretion to determine what type of sanctions are

appropriate in a given case." Id.

The Fourteenth Amendment provides a right of access to the courts. Bounds v. Smith, 430

U.S. 817 (1977). This right is neither absolute nor unconditional. A litigant has "no

constitutional right of access to the courts to prosecute an action that is frivolous or malicious."

Holt v. State, 290 Kan. 491, 500, 232 P .3d 848 (2010). Yet, "[ljitigiousness alone will not

support an injunction restricting filing activities." Tripati v. Beamani, 878 F.2d 351, 353 (I Qrh

Cir, 1989). Federal courts have recognized a court's inherent power to control the actions of

abusive litigants "by imposing carefully tailored restrictions in appropriate circumstances." Ford

v. Pryor, 553 F.3d 1174, I J 80 (10th CiL 2008) (citations omitted). Citing these Tenth Circuit

decisions, the Kansas Supreme Court has held that Kansas district courts have inherent power to

impose carefully tailored restrictions on abusive litigants in appropriate circumstances and has

authority to direct a district COUlt clerk to refrain from filing pleadings in such cases. Holt, 290

Kan. at 500-02.

The right of access to the CQUl1s is neither absolute nor unconditional and there is
no constitutional right of access to the courts to prosecute an action that is
frivolous or maliciolls.TIle goal of fairly dispensing justice ... is compromised
when the Court is forced to devote its limited resources to the processing of
repetitious and frivolous claims. No one, rich or poor, is entitled to abuse the
judicial process. We recognize that filing restrictions are a serious sanction and
that litigiousness alone is not a sufficient reason to restrict access to the court.
However, where, as here, a party has engaged in a pattern of litigation activity
which is manifestly abusive, restrictions are appropriate. Abusive and repetitive
filings cannot be allowed to strain the resources of the Kansas courts.

State ex rel. SIOHlIi 1'. Lynn, 26 Kan. App, 2d 79, 81-82 (1999) (internal quotations and citations

omitted 1.

The Court grants Defendants' request for sanctions. Plaintiffs have willfully filed

frivolous and repetitious pleadings intended to harass the defendants listed in this proceeding.

Page 24 of 32
As illustrated by the lengthy list of cases above, Plaintiffs' have engaged in similar conduct in

numerous other cases as well. Plaintiffs' behavior constitutes a pattern of activity intended to

harass and embarrass the individuals they sue, including the judges of the Eleventh Judicial

District. In addition, the volume of repetitive and frivolous pleadings has strained resources in

the Eleventh Judicial District and burdened the Office of the Clerk of the Crawford County

District Court. Defendants' request to impose sanctions is granted. While filing restrictions in

this case are clearly appropriate, as can be seen from other cases in which restrictions were

imposed, limiting such restrictions to this case alone will be insufficient to stop Pro Se Litigants

from filing further cases. Therefore, further sanctions are warranted and are hereby imposed as

follows:

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


Litigants, individually and collectively, are conjoined and may not,
proceeding pro se, tile any pleading in this case or any new cases,
including small claims and limited action cases, in any distrtct court of
the State of Kansas without express authorization of the undersigned
Judge (IS to filings in this case, 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 su its by Pro Se Litigan ts 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, proceeding pro 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 individually 01' collectively,


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
fOI- leave to file a petition. The applicanon shall be delivered to the Chief
Judge of the judicial district 01' such judge as shall be legally designated
to conduct such review and shall include:

Page 25 of 32
a. a copy of this order or any subsequent orders related to filing
restrictions;
b. a copy of tbe 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 pleading. 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 shall 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 tiling restrictions become effective as of the date Defendants filed this
Motion for Sanctions on September 28, 2015, All pro sefilings and cases
submitted by Pro Se Litigants after the date the Motion for Sanctions was
tiled will be subject to court screening,

5. The Clerk of the Crawford County District COIll1:is directed to serve a


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

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

in the case are moot,

IT IS SO ORDERED.

Jack Burr, Senior District Judge (assigned)

Date

Page 26 of 32
Prepared and submitted pursuant to Rule 170 by:

Isl Stephen Phillips


Stephen Phillips, No. 14130
Assistant Attorney General
Memorial Bldg., 2nd Floor
120 SW loth Avenue
Topeka, Kansas 66612- J 597
Phone: (785) 296-22 J 5
Facsimile: (785) 296-6296
Attorney for Defendants Loy, Wachter.
Fleming, Fleming, Jack, Lynch, Russell,
Smith, Sanders, Hazlett, Grillot and Schmidt.

Page 27 of 32
State of Kansas

COlTIIllission 011 Judicial Qualifications

Kansas Juclidal Center

2007 ANNUAL REPORT

Page 28 of 32
EXAMPLES OF CO. 'DI"Cr
FOt. '0 TO .BE I.MFROPER

A judge was found to have violated Canon 313(7} bv discussing a case with a family
member in order to obtain a professional medical opinion. The judge was cautioned to
refrain from discussing the merits of a pending proceeding outside the presence of the
parties.

«;
,-;judge,

.
who followed an alternative procedure 'which resulted in pro se pleadings being
, ~~~Irned unfiled, was publicly ordered to cease and desist from establishing procedures
COlll:..J
prevent filing of pi cad ings with the clerk of the

A judge, who had not signed an oath for each term of service, was informally advised to
sign an oath for each contractual term.

1\ judge who supplied process to a family member of the defendant instead of mailing
the material. was cautioned to follow proper procedure for obtaining service of process.

A judge 'was privately ordered to cease and desist from participating in ex parte
communications that deal with substantive matters or issues on the merits.

A judge, who serves as treasurer of a college house corporation, was cautioned about
being involved in rent collection.

A judge, who conducted a hearing without making a record and participated in a closed
meeting, was publicly ordered to cease and desist from conducting court proceedings
without making a record which assures the law has been follovved and high standards of
conduct maintained.

A judge was cautioned to refrain from conducting weddings for parties \\~10 appear
before the judge.

A retired judge, who inappropriately touched a non-judicial employee in a sexually


suggestive manner, was privately ordered to cease and desist from initiating or
participating in harassing conduct. The judge agreed 110t to accept further judicial
assignments anywhere within the State of Kansas.

A judge was informal! r advised to follow Supreme Court Rule 2.04 which provides that
indigene)' determinations are made by the district court judge

2007 Anllu<ll.Report

Page 29 of 32
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