Вы находитесь на странице: 1из 14

15 JUN-2 1\11 :51

IN THE DISTRICT

COURT OF CRAWFORD

0,,',0'

1'l rt~t<l Of OlS. 1 ~.\.;y.r;:


t
~
"J '~nUL!
',r.
A'#r.--rlli\:
\....u,, '
COUNTY, Kl~sAS
B'T _---.---.0.--.-

IN RE: REQUEST FOR GRAND JURY

Case No. 15 MR 2 P

ORDER DENYING PETITION FOR GRAND JURY


By District Judge Richard M. Smith, assigned
11th Judicial District
State of Kansas
This matter comes before the undersigned District Judge, assigned, for consideration of
the form of a petition to summon a grand jury, pursuant to K.S.A. 22-3001(c)(3), filed in the
District Court of Crawford County Kansas. As the Judges of the 11th district have recused
themselves the Departmental Justice made appropriate requests and the Chief Justice then
assigned the undersigned as the district judge to consider said petition pursuant to KS.A. 223001 (c) and to enter all necessary orders required as a result of that consideration.

For reasons set forth below this court finds that said petition is not in the form as required
by law and the petition for a grand jury is therefore denied. For further reasons described below
the petition is dismissed and the Clerk of the District Court is directed to return all other
documents and checks presented by the petitioners.

Number of Signatures Presented

A petition requesting a grand jury was filed in the office of the Clerk of the district court
of Crawford County, Kansas May 19,2015. As required by Kansas law, the Petition was
transmitted by the Clerk of the District COUlito the Crawford County Commissioner of
Elections. On June 2nd, 2015, the Commissioner of Elections filed a Certification with the Clerk
of the District Court in which he stated that the signatures on the Petition had been compared
with those on file in his office. Based on this comparison, the Elections Commissioner found that
the Petition requesting a Grand Jury contained valid signatures of 121 registered voters in
Crawford County. In the last general election 10,746 votes were cast for the office of Governor,
therefore 2% plus 100 of the total votes cast for governor in the last preceding general election as
required by K.S.A. 22-3001(2) requires 315 valid signatures to call a grand jury.

The petition fails for a want of valid signatures.

Nature of Allegations

Each signature page contained the following statement in attempted compliance with the
statutory requirements ofK.S.A. 22-3001(c)(2) and (3):

GRAND JURY PETITION*TO

THE DISTRICT

COURT CRA WFORD COUNTY, KANSAS

The undersigned qualified electors of the county of Crawford, State of Kansas hereby request
that the District Court of Crawford County, within 60 days after filing this petition cause a grand
jury to be summoned in the county to investigate alleged violations oflaw and to perform such
other duties as may be authorized by law: 1. Hear testimony and investigate alleged violations of
Federal and Kansas DUE PROCESS constitutional law by the systematic and blatant usurpation
of judicial office and the disturbing conflicts of interest between the Judges** and attorneys (esp.

their former Law partners) including instances of conformed I shocking economic conflict of
interests. The reasonable people of this county have decided that there needs to be an immediate
stop to this practice by the implementation of a new 11th District local rule that bars all Judges
from hearing their former law partner's cases. The people have NO CONFIDENCE in the
judiciary when judges act at times in a manner that does NOT promote public confidence in the
independence, integrity, and impartiality of the judiciary and believe it is inappropriate for a
Judge to hear cases with openlhidden conflicts of interest. 2. Guilty Judges parties attorneys
should be indicted, ousted from office, moneys earned returned and all related NO DUE
PROCESS cases voided, vacated and reheard. Attorneys who knowingly practiced law in front
of a judge with a conflict of interest should face disciplinary action and restitution of client and
state income for every case.
*Pursuant to K.S.A. 22-3301(c) and K.S.A. 60-1206(a)
** A.J.WACHTER, KURTIS LOY, OLIVER LYNCH, JEFFRY JACK, ROBERT
FLEMING, & LORI B. FLEMING
(Bold print, capitalization and other grammar as it appears on petition)
The statute governing the required contents of a petition to summon a grand jury provides
in pertinent part:
(2) The petition, upon its face, shall state the name, address and phone number of the
person filing the petition, the subject matter of the prospective grand jury, a reasonably
specific identification of areas to be inquired into and sufficient general allegations to
warrant a finding that such inquiry may lead to information which, if true, would warrant
a true bill of indictment.
(3) The petition shall be in substantially the following form:
The undersigned qualified electors of the county of
and state of Kansas
hereby request that the district court of
county, Kansas, within 60 days after
the filing of this petition, cause a grand jury to be summoned in the county to investigate
alleged violations of law and to perform such other duties as may be authorized by law.
The signatures to the petition need not all be affixed to one paper, but each paper to
which signatures are affixed shall have substantially the foregoing form written or printed
at the top thereof... K.S.A. 22-3001. 2014, ch. 50, 1, eff. July 1,2014

The petition, as presented to the Clerk ofthe district court requires additional description.
The above statement in support appears atop each of 48 pages which include up to 10 signatures,
names and addresses. As filed the petition includes a coversheet entitled "In the Matter of the
Grand Jury Petition," under which pictures and names of the District Judges of the 11th District
are then imposed, followed by the subtitle(s) "Grand Jury Petition to Investigate, Disqualify and
Oust All Above

11th

District Judges" and "We the People Demand and Ethical, Fair and

Impartial Judiciary." Appended to the 48 pages of signatures above described is an 11 page


document entitled "Damages, Declaratory or Injunctive Relief Defendants" which then lists the
11th District Judges, Judge Janice Russell, Judge John E. Sanders, "Commission on Judicial
Qualifications," Stanton A. Hazlett, Michal Gayoso, Jr., Tim Grillot and Kansas Attorney
General Derek Schmidt. The ensuing 11 pages seems to both explain why these additional
persons (including Stephen Phillips, who is not included in the prefatory list) require
investigation while apparently citing authorities in support of the petitioners' assertion these
persons and or entities (in the case of the Commission on Judicial qualifications refereed to,
presumably, as "panels A and B") do not have immunity from actions for "damages, declaratory,
and injunctive" relief. As no cause of action is stated against these persons and or entities, the
reason for this portion of the petition is, at best, a mystery.
The only reasonable interpretation of his petition seems to suggest the petitioners are
praying for the summoning of a grand jury pursuant to K.S.A. 22-3001 et. seq., and action for
ouster pursuant to K.S.A. 60-1205, et. seq., a request for injunctive relief pursuant to K.S.A. 60901 et. seq. and, possibly, action(s) for other relief. But, as stated above, no causes of action are
actually plead.
Whether the allegations of the petition meet the statutory requirements will be determined
from the 48 pages with signatures as they are the only documents that have been verified as the
containing the information officially "petitioned" by the individual signatories. There is no
indication any of the individuals who signed the petition read and/or agreed to the allegations set
forth on the coversheet or, more importantly, the 11 page document attached by the three
petitioners at the time of filing. Although there may be no way to be assured beyond any doubt
that the petitioners so intentionally framed this action, the reasonable causes of action divined

from these pleadings seems to best interpreted as a petition for a grand jury, comprised by 48
signature pages combined with an action for other civil relief filed by the 3 petitioners.
The statutory threshold of sufficient allegation by way of citizen petition compelling the
summoning of a grand jury can be distilled from the statute. In addition to the required language
and general accusation of "alleged violations of law" required by subsection (3) ofK.S.A. 22330l(c) subsection (2) requires three elements. Required are (1) "the subject matter of the
prospective grand jury" (2) "a reasonably specific identification of the areas to be inquired into"
and (3) "sufficient general allegations to warrant a finding that such inquiry may lead to
information which, if true, would warrant a true bill of indictment." These requirements may be
read in the context of what a grand jury can and cannot do. In point of fact the only thing grand
juries may do is indict. There are no other functions. Grand juries have no powers or
responsibilities other than those that flow from their role in the criminal justice system of brining
criminal charges.
The Founding fathers of the United States felt so strongly about the virtues of the grand
jury system that it is protected by our Bill of Rights. The Fifth Amendment to the United States
Constitution states:
"No person shall be held to answer for a capital or otherwise infamous
crime, unless on a presentment or indictment of a grand jury ..."

However, the United States Supreme Court has held that the Fifth Amendment right of
indictment by a Grand Jury is not binding on the individual states through the Fourteenth
Amendment. See Hurtado v. California, 110 U.S. 516 (1884). Notwithstanding, nearly all of the
states continue to use Grand Juries as a way to investigate criminal conduct and to commence

criminal prosecutions. Moreover, in most states, Grand Juries continue to bear a significant
resemblance to those which existed at common law.
The United States Supreme Court has explained the scope of a grand jury's powers as
follows:
"Traditionally the grand jury has been accorded wide latitude to inquire into violations
of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and
may determine alone the course of its inquiry. The grand jury may compel the production
of evidence or the testimony of witnesses as it considers appropriate, and its operation
generally is unrestrained by the technical procedural and evidentiary rules governing the
conduct of criminal trials. 'It is a grand inquest, a body with powers of investigation and
inquisition, the scope of whose inquiries is not to be limited narrowly by questions of
propriety or forecasts of the probable result of the investigation, or by doubts whether any
particular individual will be found properly subject to accusation. Blair v. United States,
250 U.S. 273, 282, 39 S.Ct. 468,471,63 L.Ed. 979 (1919)." (Emphasis added.)
United States v. Calandra, 414 U.S. 338, 343 (1974).

In reviewing the development of the Grand Jury at common law, one of the best
summaries which this Court has read is found in the Supreme Court of Rhode Island's decision in
Opinion to the Governor, 62 R.I. 200, 203, 4 A.2d 487 (1939). In its decision, the Rhode Island
Supreme Court wrote:
"It is unnecessary here to go at great length into the history of the grand jury. It was so
definitely fixed and established in the law of England that its composition, purpose and
scope of power in certain criminal matters were universally known and accepted, and
they are not now open to dispute. Almost from time immemorial, the grand jury was
composed of not more than twenty-three sworn members and the concurrence of at least
twelve of such members was always necessary in order to return a valid indictment. One
of its main purposes was to protect the rights of the individual citizen against possible
oppression by the crown or its agencies in the prosecution of crimes; or ... to safeguard
the individual's rights against private malice, party passion or governmental abuse."

The powers of the grand jury were indeed broad and were not specifically limited merely
to matters presented by the crown or the charge of the court. Certainly the common law
grand jury in England was not so limited. This readily appears from the form of oath
administered, under which it could investigate and act upon matters which might come
properly before it through such knowledge of any of its members as was based upon their
own observations or evidence, but not on mere rumor or reports. A grand jury thus

constituted functioned in this manner in England without any substantial change for
several hundred years prior to the adoption of our constitution. No other kind of grand
jury was known."62 R.I. at 203.

The Supreme Court of Rhode Island further stated:


"[W]e must keep in mind the fact ... that every grand jury under common law had the
power to investigate all kinds of indictable crimes committed in its county and not merely
into certain kinds of such crimes or only those called to its attention by a prosecuting
attorney or the court. Such broad powers were inherent in the nature of every grand jury
at common law and, therefore, in our opinion, it follows that 'a grand jury' within the
meaning of that term ....must have the same full powers as a common law grand jury."
supra.

Even though there has been legitimate criticism of the grand jury system throughout the
history ofthe United States, it has withstood the test oftime. Although Grand Juries are the
exception rather than the rule in Kansas, they have continued to be used on various occasions
throughout the history of Kansas. Just as it did in colonial times, the Grand Jury continues to
give representatives of the community a voice in deciding who should and should not be
prosecuted for a violation of our criminal laws.
"In Kansas, a grand jury is a creature of statute and not of the constitution. Its function is
investigatory and accusatory in contrast to a petit jury, which determines the guilt or innocence
of an accused." State v. Snodgrass, 267 Kan. 185,190,979

P.2d 664 (1999) (Emphasis

supplied). The role of a grand jury in Kansas "is to inquire into crimes cognizable by it and, upon
the concurrence of 12 or more jurors, an indictment may be found and presented to the district
court for filing." 267 Kan. at Syl. ~ 1.
Historically, the grand jury functioned primarily as a protection against arbitrary
prosecution by the State:
It frequently stood as a barrier against royal persecution, until at length it was regarded as
an institution that secured the King's subjects against the oppression of unfounded
prosecutions by the Crown. Although that reason may not have been the motivating
factor in this country, the fact remains that the grand jury system was adopted here and

for considerations quite similar to those of the mother country. Our adoption of the
system was founded on the theory not only of bringing wrongdoers to justice, but
also of providing protection against unfounded and unreal accusations, whether
these had their origin in governmental sources or were founded on private passion
or enmity. '38 Am.Jur.2d Grand Jury 2, pp 947-98." (Emphasis supplied.), 267 Kan.
at 193.

In Snodgrass, The Kansas Supreme Court found that "the fundamental purpose of a grand
jury 'is to obtain a group of men and women who represent a fair and impartial cross section of
citizens of the county, each with his or her own individual thoughts, experiences,and reactions."
, 267 Kan. at 195 (quoting 38 Am.Jur.2d Grand Jury 4, pp. 948-49). Furthermore, "a grand
jury has the right and obligation to act on its own information, however acquired" and "the oath
required to be taken by grand jurors ... requires them to inquire diligently into the commission
of crimes ...." 267 Kan. at 195 (quoting 38 AmJur.2d Grand Jury 7, pp. 951-52, emphasis
supplied).
Although once impaneled the investigative role of the grand jury must be liberally
construed, this is not suggest that one should be summoned at a mere whim, fancy or for any
subversive malevolent purpose. The statute presumes a demonstration that if the allegations are
deemed true they will "warrant a true bill of indictment." K.S.A. 22-3001 (c)(2). There are, thus,
reasonable and appropriate limitations. Obviously there must be allegations, that if proved true,
someone could be charged with a crime. In other words grand juries are limited to consideration
of criminal matters. They are not to be called to address civil or administrative matters that do
not rise to the level of the commission of a crime. Further grand juries should not be called on
mere unsupported suspicion or used in a calculated attempt to harass others. Grand juries should
not engage in, and therefore presumably should not be called for the purpose of a mere fishing
expedition in the hopes that some criminal violation might be discovered. In terms coined by the

Kansas Supreme Court, a district court must assure itself "that the grand jury has not engaged in
an arbitrary fishing expedition and that the targets were not selected ... out of malice or with
intent to harass." Also" The investigatory powers of a grand jury are not unlimited. Grand
juries are not licensed to engage in arbitrary fishing expeditions, nor may they select
targets of investigation out of malice or with an intent to harass." Tiller v. Corrigan, 286
Kan. 30,46, Syll. ~5, 182 P.3d 719, 729 (2008)(emphasis supplied).
Outside the required form language and the requests for relief that must be deemed mere
surplusage, the only language on the petition which liberally may be construed or divined to
meet the requirements amounting to allegations of a crime are as follows: "Hear testimony and
investigate alleged violations of Federal and Kansas DUE PROCESS constitutional law by.the
systemic and blatant usurpation of judicial office and the disturbing conflicts of interest between
Judges** and attorneys (esp. their former law partners) including instances of confirmed /
shocking economic conflict of interests." ... it is inappropriate for a judge to hear cases with
open/hidden conflicts of interest. ... "
The standard this court will impose is that now generally recognized regarding pro se
litigants and their pleadings. "Any cause of action that might be divined." In other words, this
court is not employing some hyper technical or even technical or, arguably, sub-technical
requirement in determining if the petition meets the statutory threshold. The stand is any crime
this court may divine from these allegations. As will be seen, even with that standard, as low as it
may be, the petition fails to meet the necessary requirements. First the concept of "Federal" due
process is wholly irrelevant. A Kansas state grand jury cannot bring federal charges, plain and
simple. Further there are no criminal statutes that speak to a denial of due process in the Kansas
Criminal code (K.S.A. chapter 21). Clearly there may be grounds for a civil action, but there are

no such grounds for a criminal action. As demonstrated by the authorities above, the only
concern of a Kansas grand jury is whether or not to bring criminal charges.
While it is difficult to perceive of a reality where any reasonable person would disagree
with the concept that justice should be dispensed without the influence of inappropriate conflicts
of interest, just as the preceding discussion delineates the difference between civil and criminal
actions there is no criminal statue which can reasonable be construed to be applicable to the
conflict of interest complaints of the drafters of this instant petition.
In point of fact, outside the parameters ofK.S.A. 20-311d (Change of judge-dealing with the
case by case determinations of disqualification) the only entity which is able to legally determine
a conflicts of interest and appropriate sanctions regarding a trial court judge is the Kansas
Supreme Court or its designated authority the Kansas Commission on Judicial Qualifications
(KCJQ). Ironically that entity is the primary subject of the 11 page addendum to the petition as
filed with the district court. No district court either embodied as a grand jury, a petit jury, a judge
or tribunal of judges has any authority to determine a conflict of interest of a district court judge
or to impose any sanction once one has been determined. There is no crime in the Kansas
criminal code which is precipitated even if a conflict exists. That is the exclusive province of the
Supreme Court. Under Article 3 section 15 of the Kansas Constitution Supreme Court has
empowered the KCJQ to assist in judicial disciplinary matters. Under rule 605, POWERS OF
COMMISSION, the commission has all powers necessary to institute, conduct and dispose of
proceedings regarding the all qualifications of judges to sit on individual cases as well as their
fitness to serve generally. Inherent in this express delegation of the Supreme Court's exclusive
jurisdiction, power and authority is the power to determine conflicts of interest and the

appropriate sanctions for any violation of the rules regarding the same. No grand jury convened
for any imaginable reason would have this authority.

No other supposed crime can be divined from this petition.

If this court were to consider the 11 pages appended to the district court filing despite the
apart lack of presentation to the required qualified voters who signed the petition, the denial of
the petition becomes even more necessary. With the allegations of the signed petition the
petitioners have the benefit of the general nature of the allegations. With the addendum added
after the voters signed their petitions the specificity provided in the 11 page attachment makes it
clear that the complaints relate not only to concerns within the exclusive province of entities
such as the KCJQ and the State Disciplinary Administrator (Attorney Discipline), but that
apparently many of these very concerns have been investigated by these agencies. What is
clearly implied if not overtly manifest is that some persons are dissatisfied with the fact that
complaints made to these agencies did not result in a desired outcome. The natural conclusion by
anyone familiar with these agencies and their processes is that unsatisfied by the action and or
inaction of these agencies parties now seek an alternative whether or not the law so provides.

Kansas law does not provide the grand jury process as an avenue to either visit or revisit
issues of these types.

Nature of Grand Jury Proceedings

In Kansas, K.S.A. 22-3012 governs the secrecy of Grand Jury proceedings and the
disclosure of information. Other than limited disclosures made to the County Attorney for the
use in the performance of her official duty, ajuror, attorney, interpreter, reporter or typist who

transcribes recorded testimony is permitted to "disclose matters occurring before the Grand Jury
. only when so directed by the Court preliminarily to or in connection with the judicial proceeding
or when permitted by the Court at the request of the defendant upon a showing the grounds may
exist for a motion to dismiss the indictment because of matters occurring before the Grand Jury."
Likewise, the Court may "direct an indictment shall be kept secret until the defendant is in
custody or has been given bail..."

The United States Supreme Court has held that "the proper functioning of our Grand Jury
system depends upon the secrecy of Grand Jury proceedings." Douglas Oil Co. v Petrol Stocks
Northwest, 441 U.S. 211, 218 (1979). Some of the vital interests which are protected by the
requirement of secrecy include: (1) Preserving the willingness and candor of witnesses called
before the Grand Jury; (2) Not altering the target of an investigation who might otherwise flee,
intimidate witnesses and/or harass the Grand Jurors; and (3) Preserving the rights of the citizen
who is exonerated by the Grand Jury. 441 U.S. at 219. Thus in order to protect the integrity of
the Grand Jury system, courts "have consistently stood ready to defend [Grand Jury secrecy]
against unwarranted intrusion. In the absence of a clear indication in a statute ... [the Court] must
always be reluctant to conclude that a breach of secrecy has been authorized." United States v
Sells Engineering, Inc., 463 U.S. 418, 425 (1983) (citing Illinois v Abbott and Associates, Inc.,
460 U.S. 557, 572-573 [1983].)

"Despite the fact that news gathering may be hampered, the press is regularly excluded
from Grand Jury proceedings." Brandonburg v Hayes, 408 U.S. 665,684-685 (1972).
Furthermore, the United States Supreme Court has went so far as to describe Grand Jury secrecy
as "indispensable" to the administration of justice. United States v Johnson, 319 U.S. 503, 513

(1943). Thus, it is clear that the Grand Jury "occupies a high place as an instrument of justice in
our system of criminal law - so much so that it is enshrined in the Constitution." Sells, 463 U.S.
at 418 (1983) (citing Pittsburg Plate Glass, Co. v United States, 360 U.S. 395, 399 (1959) and
Costello v United States, 350 U.S. 359, 361-362 (1956).

In addition to these secrecy issues another aspect of grand jury proceedings bears on the
ultimate disposition of these pleadings. Once a petition for a grand jury is filed the involvement
of the persons filing the same, with the entire process ceases. "However, upon the submission
of the petition, the role of the citizenry in the grand jury process ceases." Tiller v.

Corrigan, 286 Kan. 30, 182 P.3d 719 (2008) (emphasis supplied). In a case that is not
controlling authority as it is unpublished and yet is the only authority of which this
court isaware the Kansas Court of Appeals has held that a petitioner lacks standing to
file an appeal from an order denying a grand jury when the signatures are deemed
insufficient as their role ceases upon presentation of the petition. See In re Grand Jury
Filed by Reardon, 260 P.3d 1249 (Kan. Ct. App. 2011).

The matter filed by petitioners is clearly labeled a petition for grand jury and the matter
was appropriately filed as such with the designation consistent with a Miscellaneous Filing. The
fact that grand jury proceeds, as clearly held in the authorities cited above, are unique creatures
of statute, governed by the statues providing therefore there is no statutory procedure which
allows such a petition to be joined with any other cause of action. In addition to this fact the
grand jury secrecy requirements make joinder with any other action impractical if not
impossible.

This court is aware that petitioners have provided summons and service fees to the Clerk
of the District court for service of summons on many parties although the statutes concerning
grand juries make no such provision. The court hereby directs the Clerk of the Court to return
these documents and checks to the persons from whom they were received.
IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED;
Based upon the above and forgoing the petition for a grand jury to be summoned filed May 19th,
2015 in the District Court of Crawford County Kansas should be and is herby denied. The
Petition is dismissed. This order is final. A copy of this order shall be given to petitioners. The
file will then be sealed and access will be permitted only uponfurther order of the court.

IT IS SO ORDERED.

M. ","'Uu,w"U
District Judge, assigned