Mauthe v. Loy

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NOT DESIGNATED FOR PUBLICATION

No. 116,284

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ERIC M. MUATHE, et al.,
Appellants,

v.

HONORABLE KURTIS LOY, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Crawford District Court; JACK L. BURR, judge. Opinion filed July 21, 2017.
Affirmed.

Eric M. Muathe, James Beckley, Jr., Kasey King, and Travis Carlton, appellants pro se.

Stephen Phillips, assistant attorney general, and Derek Schmidt, attorney general, for appellees
Honorable Kurtis Loy, Honorable Andrew Wachter, Honorable Robert Fleming, Honorable Lori Fleming,
Honorable Jeffry Jack, Honorable Oliver Kent Lynch, Honorable Janice Russell, Honorable Richard
Smith, Honorable John Sanders, Stanton Hazlett, and Tim Grillot.

Shon D. Qualseth and Whitney Casement, assistant attorneys general, and Derek Schmidt,
attorney general, for appellees Kansas Judicial Qualifications Panels A and B.

Before MALONE, P.J., LEBEN and BRUNS, JJ.

Per Curiam: The appellants, Travis Carlton; James Beckley, Jr.; Kasey King; and
Eric Muathe, appeal from the district court's decision dismissing their petition against the
appellees and imposing sanctions in the form of filing restrictions against them. The
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appellants raise several issues on appeal. Based on our review of the record, however, we
conclude that the district court did not commit reversible error. Thus, we affirm.

FACTS

On July 22, 2015, the appellants filed a class action petition for injunctive relief
against several district judges, several senior judges, the disciplinary administrator, the
attorney general, and several attorneys. The petition also named the Kansas Commission
on Judicial Qualifications Panels "A" and "B" as defendants but did not identify any of
the members of the panels by name.

In the petition, the appellants listed numerous complaints about the various
appellees. In their prayer for relief, they requested that a permanent injunction be entered
disqualifying the appellee judges from participating in court actions in which their
impartiality might reasonably be questioned and for the appointment of an independent
oversight committee to investigate the appellants ethical complaints against the appellees.
Because of the nature of the case, Chief Justice Lawton Nuss assigned Senior Judge Jack
Burr to hear the case.

Over the next several months, each of the appellees sought to have the action
dismissed. On September 28, 2015, several of the appellees filed a motion for sanctions
against the appellants. These appellees argued that the appellants had a history of filing
frivolous lawsuits and requested that filing restrictions be placed on the appellants. In
support of the motion for sanctions, these appellees attached copies of pleadings for
multiple other cases filed by the appellants, which are included in the record on appeal.

Ultimately, the appellants filed a voluntary dismissal of this action on March 21,
2016. In response, the appellees argued that although the appellants had the right to
voluntarily dismiss the lawsuit, the district court should still consider the motion for
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sanctions they filed prior to the dismissal. On April 4, 2016, the appellants filed a motion
for a change of judge, a motion for a continuance, and a motion to withdraw their
voluntary dismissal. The district court considered all of these motions at a hearing held
on April 18, 2016. The district court also considered three small claims cases filed by
Noah Day—who was a plaintiff in this case but who is not one of the appellants in this
appeal.

Although they had notice of the hearing, none of the appellants appeared.
However, each of the appellees participated in the hearing by and through their respective
attorneys. Under the circumstances, the senior judge found that the hearing should go
forward as scheduled. He also noted that the action was dismissed upon filing of the
notice of dismissal and found no reason to reinstate the action. The senior judge then
considered the motion for change of judge. In denying the motion, the senior judge noted
that the motion did not indicate any reason why he should be disqualified and also found
it to be procedurally barred because it was filed outside the time period set for in K.S.A.
20-311f.

The senior judge then considered the motion for sanctions. After noting that the
appellants did not appear to oppose the motion, the senior judge found that the appellants
had not done meaningful legal research in filing this action. Moreover, he found that the
various appellants had filed multiple other cases that could be considered frivolous or
harassing. Thus, he concluded that it would be appropriate to impose reasonable filing
restrictions.

In a journal entry entered on June 15, 2016, the senior judge summarized the court
documents he had reviewed as follows:

"These cases contain frivolous pleadings, repeated motions to disqualify judges, and
references to the UCC and sovereign citizenship. When several of the cases were
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resolved, the judges imposed sanctions, including filing restrictions within those
individual cases. Several [pleadings] 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."

In the journal entry, the senior judge listed multiple cases filed by Muathe, King,
Beckley, and Carlton. Although numerous cases were specifically identified, he noted
that this was not an exclusive list of all of the cases filed by the appellants. He also
reviewed various federal and state cases involving the right of access to the courts as well
as the "inherent power [of courts] to impose carefully tailored restrictions on abusive
litigants . . . ." Accordingly, the senior judge imposed the following filing restrictions on
the appellants:

"1. With the sole exception of a Notice of Appeal in this matter, Pro Se Litigants,
individually and collectively, are enjoined and may not, proceeding pro se, file any
pleading in this case or any new cases, including small claims and limited action cases, in
any district court of the State of Kansas without express authorization of the undersigned
Judge as to filings in this 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 suits
by Pro Se Litigants which are signed and brought by a lawyer licensed to practice in this
state or admitted pro hac vice are not subject to this restriction.

"2. Should Pro Se Litigants, 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 pleading 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 or 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 for leave to file a petition. The application shall be delivered to
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the Chief Judge of the judicial district or such judge as shall be legally designated to conduct such
review and shall include:

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

"The Chief Judge or Designated Judge will then determine if the petition or
pleading is lacking in merit, is duplicative, or is frivolous. If the petition or
pleading is found to comply with the above requirements, Pro Se Litigants will
be granted leave to file the petition or 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 filing restrictions become effective as of the date Defendants filed this
Motion for Sanctions on September 28, 2015. All pro se filings and cases submitted by
Pro Se Litigants after the date the Motion for Sanctions was filed will be subject to court
screening.

"5. The Clerk of the Crawford County District Court is directed to serve a copy of
this order on the Chief Judge of each of the 31 Judicial Districts in Kansas."

At the request of assistant attorney general Stephen Phillips, the senior judge did
not include Day in the filing restrictions. Evidently, Day had reached an agreement with
the attorney general to dismiss the three small claims cases he had filed because they
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were similar to claims that he had asserted in federal court. As such, the senior judge also
dismissed Day's small claims cases, and Day has not appealed from that decision.

The journal entry that was ultimately entered by the district court was drafted by
the assistant attorney general and submitted pursuant to Kansas Supreme Court Rule 170
(2017 Kan. S. Ct. R. 216). In addition to submitting the proposed journal entry, the
assistant attorney general also submitted objections asserted by the appellants. It appears
that the proposed journal entry submitted was slightly different from the one sent to the
appellants. Specifically, the assistant attorney general had removed Day from the list of
parties upon whom filing restrictions were being imposed. Evidently, Day had told the
assistant attorney general that he had moved to Colorado and promised never to abuse the
Kansas courts in the future.

ANALYSIS

Imposition of Sanctions after Dismissal

On appeal, the appellants contend that the district court lost jurisdiction to impose
sanctions after they had voluntarily dismissed their lawsuit. Whether jurisdiction exists is
a question of law subject to unlimited review. Fuller v. State, 303 Kan. 478, 492, 363
P.3d 373 (2015). Although it is true that a district court generally loses jurisdiction upon
dismissal of an action, there are exceptions to this rule. In particular, district courts
continue to have authority to consider any motion for sanctions for conduct that took
place prior to the case being dismissed. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
395-99, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990).

In Cooter, the United States Supreme Court—applying Rule 11 and Rule 41(a)(1)
of the Federal Rules of Civil Procedure, which contain language that is substantially
similar to K.S.A. 2016 Supp. 60-211 and K.S.A. 2016 Supp. 60-241(a)(1)—concluded
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that district courts are not powerless to impose sanctions after a motion for voluntary
dismissal has been filed. 496 U.S. at 394-95. In particular, the Supreme Court found:

"Like the imposition of costs, attorney's fees, and contempt sanctions, the imposition of a
Rule 11 sanction is not a judgment on the merits of an action. Rather, it requires the
determination of a collateral issue: whether the attorney has abused the judicial process,
and, if so, what sanction would be appropriate. Such a determination may be made after
the principal suit has been terminated.

"Because a Rule 11 sanction does not signify a district court's assessment of the
legal merits of the complaint, the imposition of such a sanction after a voluntary
dismissal does not deprive the plaintiff of his right under Rule 41(a)(1) to dismiss an
action without prejudice. '[D]ismissal . . . without prejudice' is a dismissal that does not
'operat[e] as an adjudication upon the merits,' Rule 41(a)(1), and thus does not have a res
judicata effect." 496 U.S. at 396.

Furthermore, the Supreme Court held:

"Rule 41(a)(1) does not codify any policy that the plaintiff's right to one free dismissal
also secures the right to file baseless papers. The filing of complaints, papers, or other
motions without taking the necessary care in their preparation is a separate abuse of the
judicial system, subject to separate sanction. As noted above, a voluntary dismissal does
not eliminate the Rule 11 violation. Baseless filing puts the machinery of justice in
motion, burdening courts and individuals alike with needless expense and delay. Even if
the careless litigant quickly dismisses the action, the harm triggering Rule 11's concerns
has already occurred. Therefore, a litigant who violates Rule 11 merits sanctions even
after a dismissal. Moreover, the imposition of such sanctions on abusive litigants is useful
to deter such misconduct. If a litigant could purge his violation of Rule 11 merely by
taking a dismissal, he would lose all incentive to 'stop, think and investigate more
carefully before serving and filing papers.' Amendments to Federal Rules of Civil
Procedure, 97 F.R.D. 165, 192 (1983) (Letter from Judge Walter Mansfield, Chairman,
Advisory Committee on Civil Rules) (Mar. 9, 1982)." 496 U.S. at 397-98.
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Here, the appellants had the right to voluntarily dismiss their lawsuit pursuant to
K.S.A. 2016 Supp. 60-241(a)(1) and—to their credit—they did so. Nevertheless, the
district court still had the authority to rule on a motion for sanctions that was filed prior to
the dismissal. Thus, we conclude that the district court did not lose its jurisdiction to rule
on the pending motion for sanctions filed by the appellees.

Review of Sanctions Imposed

The appellants also challenge the sanctions that were imposed by the district court.
We review the district court's imposition of sanctions under an abuse of discretion
standard. Schoenholz v. Hinzman, 295 Kan. 786, 798, 289 P.3d 1155 (2012). A judicial
action only constitutes an abuse of discretion if the action is (1) is arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern
Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106
(2013).

The appellants frankly admit in their brief that they "have filed uncountable—if
not record breaking—ethical complaints against the Defendant Judges spanning several
years. It is also undeniable that [they] have individually, or collectively, previously
docketed, sued or recused the named Defendant/Appellee Judges." In addition to
numerous cases filed in state court, the appellants acknowledge that they have also filed
similar cases in federal court. Nevertheless, the appellants argue that the filing restrictions
entered against them constitute retaliation for filing ethical complaints against the various
district judges and senior judges named as parties to this case. They additionally argue
that they have immunity from the imposition of filing restrictions as sanctions under
Kansas Supreme Court Rule 223 (2017 Kan. S. Ct. R. 272).

A review of Rule 223 reveals that it only provides immunity for the content of
complaints, reports, and/or testimony during a disciplinary proceeding. See Gerhardt v.
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Harris, 261 Kan. 1007, 1012, 934 P.2d 976 (1997). Specifically, Rule 223 has been
interpreted to provide immunity from being sued for statements made—orally or in
writing—in the course of a disciplinary proceeding. Jarvis v. Drake, 250 Kan. 645, 650-
51, 830 P.2d 23 (1992). Rule 223 does not, however, allow litigants to file frivolous or
harassing lawsuits. Rather, as this court found in State ex rel. Stovall v. Lynn, 26 Kan.
App. 2d 79, 81-82, 975 P.2d 813 (1999), "'[t]he right of access to the courts is neither
absolute nor unconditional . . . and there is no constitutional right of access to the courts
to prosecute an action that is frivolous or malicious.'"

We find no evidence in the record to suggest that the senior judge assigned by the
Chief Justice of the Kansas Supreme Court to preside over this action imposed sanctions
in retaliation for filing ethical complaints against some or all of the appellees. Instead, we
find that the senior judge carefully considered the multiple state and federal cases filed by
the appellants against the appellees and others. After doing so, he concluded that their
"behavior constitutes a pattern of activity intended to harass and embarrass the
individuals they sue, including judges of the Eleventh Judicial District" and that "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."

As indicated above, it is our role to determine whether the senior judge abused his
discretion in imposing sanctions in this case. See State v. Ward, 292 Kan. 541, 550, 256
P.3d 801 (2011). Based on our review of the record, we find that there is substantial
evidence to support the decision reached by the senior judge to impose sanctions.
Furthermore, we see nothing in the record to suggest that the imposition of sanctions to
be arbitrary, capricious, or unreasonable under the unique circumstances presented.

Regarding the specific filing restrictions imposed as sanctions, we find them to be
consistent with those imposed in the Lynn case. 26 Kan. App. 2d at 81. In fact, the filing
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restrictions appear to be nearly identical to those imposed in Lynn. Such filing restrictions
were found in Lynn to be reasonable. 26 Kan. App. 2d at 82. We note that the senior
judge actually has given the appellants even greater access to the courts than provided
under the Lynn restrictions. Here, consistent with the restrictions approved by the United
States Court of Appeals for the Tenth Circuit in the case of In re Winslow, 17 F.3d 314,
316 (10th Cir. 1994), the appellants do not need court approval to file claims in court
with the assistance of a licensed attorney. That attorney, of course, would be subject to
the requirements of K.S.A. 2016 Supp. 60-211. We conclude that under the restrictions
imposed, the appellants will still have appropriate access to the courts. Accordingly, we
find no abuse of discretion or error of law in the district court's imposition of the filing
restrictions on the appellants.

Objections to Journal Entry

The appellants also contend that the district court failed to rule on their objections
to the journal entry prepared by the assistant attorney general and submitted to the district
court pursuant to Supreme Court Rule 170. Whether the district court complied with a
Kansas Supreme Court rule is a question of law subject to unlimited review. See Rhoten
v. Dickson, 290 Kan. 92, 100, 223 P.3d 786 (2010). When a district court orders an
attorney to prepare a journal entry, he or she is required to follow Rule 170. See State v.
Bolden, 28 Kan. App. 2d 879, 883, 24 P.3d 163 (2001).

Kansas Supreme Court Rule 170 (2017 Kan. S. Ct. R. 216-17) states in relevant
part:

"(a) Order; Content. When the court directs a party to prepare an order, the party must
prepare the order in accordance with the court's directions. As used in this rule, 'order'
includes a journal entry or other document containing a court ruling.

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"(b) Duties of Party Preparing Order. A party directed to prepare an order must, not
later than 14 days after the court's direction, unless the court specifies a different time:
(1) serve on counsel of record and unrepresented parties not in default for failure
to appear a copy of:

(A) the proposed order; and

(B) a notice that, unless an objection is received not later than 14 days after
service of the proposed order, the order will be filed with the court; and

(2) file a certificate of service with a copy of the order and notice attached.

"(c) Objections. An objection to a proposed order must be served—not later than 14 days
after service of the proposal—on the party that drafted it.

"(d) Submission to Court.

(1) If no objection to a proposed order is served before the expiration of the time
under subsection (c) for serving objections, the drafter must submit the original to the
court for approval.

(2) If there is an objection, the parties must make a reasonable effort to confer to
resolve the objection and, if agreement is reached, the drafter must submit the agreed
journal entry to the court for approval. A 'reasonable effort to confer' requires more than
sending a communication to the opposing party. It requires that the parties in good faith
converse, compare views, and deliberate, or in good faith attempt to do so.

(3) If—after reasonable effort to confer—the parties have not agreed on the terms
of the order, the drafter must submit the original draft and the objection to the court and
the court must settle the order, with or without a hearing." (Emphasis added.)

According to the record on appeal, Rule 170 was appropriately followed in this
case. The assistant attorney general filed a Rule 170 notice stating that he had served the
appellants with the proposed journal entry. He then submitted the proposed journal entry
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and the appellants' objections to the district court. In turn, the district court decided to
enter the journal entry as submitted. Although the district court could have held a hearing,
it was not required to do so. See In re Marriage of Crouse, No. 113,831, 2016 WL
3856677, at *4-5 (Kan. App. 2016) (unpublished opinion). "Enforcement of [Rule 170] is
left to the sound discretion of the district court, since its whole purpose is to provide
assistance to the court." In re Marriage of Anjard, No. 103,426, 2011 WL 5389679, at *8
(Kan. App. 2011) (unpublished opinion). Thus, we do not find that the district court erred
in entering the journal entry without a hearing to resolve the dispute between the parties
regarding its contents.

Further, the appellants argue that the journal entry signed by the district court did
not match its on-the-record ruling at the hearing. Unlike a criminal case, however, an
order entered in a civil case does not become final until it is journalized and filed with the
clerk of the court. K.S.A. 2016 Supp. 60-258. See Elliott v. Farm Bureau Ins. Co., Inc.,
26 Kan. App. 2d 790, 793, 995 P.2d 885 (1999) (stating that district court has authority
until final judgment to modify its ruling). Moreover, the appellants have not shown how
the minor differences between what was stated on the record and what is in the journal
entry constitute error or how they were prejudiced by such error. Accordingly, we
conclude that the journal entry adequately reflects the decision reached by the district
court in this case.

Small Claims Actions filed by Noah Day

The appellants argue that it was improper for the district court to dismiss the small
claims cases filed by Day at the same hearing in which it heard the pending motions in
this case. Whether a court has jurisdiction involves a question of law subject to unlimited
review. Fuller, 303 Kan. at 492. Similarly, whether a party has standing involves a
question of law subject to unlimited review. Gannon v. State, 298 Kan. 1107, 1122, 319
P.3d 1196 (2014).
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None of the issues relating to the small claims actions filed by Day are properly
before this court on appeal. As indicated above, Day did not appeal from the dismissal of
his small claims cases, and he is not a party to this appeal. See K.S.A. 2016 Supp. 60-
2103(b); Walker v. Regehr, 41 Kan. App. 2d 352, 354-55, 202 P.3d 712 (2009). Because
the appellants were not parties to the small claims actions, they lack standing to challenge
the rulings in those cases. See Board of Johnson County Comm'rs v. Jordan, 303 Kan.
844, 854, 370 P.3d 1170 (2016) (standing is a jurisdictional question). Thus, we lack
appellate jurisdiction over issues involving Day.

Alleged Conflicts of Interest

In addition, the appellants contend that the assistant attorney general who
represents the judges who are named as parties to this case has a conflict of interest.
Specifically, the appellants argue that their filing of complaints about these judges with
the attorney general's office constitutes a conflict of interest. They also argue that Stan
Hazlett, who is the Kansas Disciplinary Administrator, should not have been allowed to
pursue sanctions in the form of filing restrictions against them because they have also
filed complaints with his office. The appellants do not support their argument with any
authority other than citing several rules of professional responsibility. Moreover, they do
not show how these rules are applicable in this case. Thus, we do not find that the
appellants' argument on this issue to be persuasive.

Motion for Change of Judge

Finally, the appellants contend that "[i]t is an abuse of discretion for a Judge to
hear or determine the legal sufficiency of a change of [judge] motion filed against the
same Judge." K.S.A. 20-311d sets out the procedure for requesting a change of judge. If a
party believes the judge assigned to the case cannot be fair and impartial, he or she may
file a motion for a change of judge and that judge initially hears the motion informally.
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K.S.A. 20-311d(a). If the judge refuses to disqualify himself or herself, the moving party
may then file an affidavit alleging any of the grounds for disqualification specified in
K.S.A. 20-311d(c). It is at that point that the chief judge or another judge reviews the
affidavit for legal sufficiency. K.S.A. 20-311d(b).

Here, a review of the record reveals that the appellants filed a motion to change
judge pursuant to K.S.A. 20-311d. In turn, the senior judge initially ruled on the motion
when he heard the other pending motions in this case. As such, we find that the district
judge followed the appropriate procedure as set forth in the statute.

Affirmed.