Petition for Writ of Certiorari — Sharp v. Kansas

2 Supreme Court, U.S.

—s oo oF

8919 7 JUN 12. 1990

JR.

CLERK

In The

Supreme Court of the United States

October Term, 1990

La.

vy

REX A. SHARP, KERRY McQUEEN, and

JAMES H. MORAIN, as individuals,

NEUBAUER, SHARP, McQUEEN,

DREILING & MORAIN, P.A., as a firm, and

ALL OTHER LAWYERS AS A CLASS REQUIRED

BY THE STATE OF KANSAS TO REPRESENT

KANSAS INDIGENT CRIMINAL DEFENDANTS,

Petitioners,

THE STATE OF KANSAS,

Respondent.

>»

4

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF KANSAS

,%

vy

Rex A. SHARP

419 North Kansas

P.O. Box 2619

Liberal, Kansas 67905-2619

(316) 624-2548

Counsel of Record for

Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

IF THE STATE DISCRIMINATORILY TAKES FIFTH

AMENDMENT PRIVATE “PROPERTY” AND LIBERTY

FOR PUBLIC USE WITHOUT JUST COMPENSATION OR

A FORMAL HEARING AND THEREBY VIOLATES THE

JUST COMPENSATION CLAUSE, SUBSTANTIVE DUE

PROCESS CLAUSE, PROCEDURAL DUE PROCESS

CLAUSE, EQUAL PROTECTION CLAUSE, THIR-

TEENTH AMENDMENT, AND 42 U.S.C. SECTION 1994,

IS THERE A PRIVATE RIGHT OF ACTION FOR DAM-

AGES AGAINST THE STATE TO VINDICATE PAST

CONSTITUTIONAL RIGHTS OR ONLY A PRIVATE

RIGHT OF ACTION FOR INJUNCTIVE RELIEF?

a. IS THE DAMAGE REMEDY ONLY AVAILABLE

UNDER THE JUST COMPENSATION CLAUSE FOR

TAKINGS OF REAL PROPERTY OR DO ALL TYPES OF

FIFTH AMENDMENT “PROPERTY” RECEIVE THE

SAME PROTECTION?

b. IS THE DAMAGE REMEDY AGAINST THE

STATE FOR SUBSTANTIVE DUE PROCESS, PRO-

CEDURAL DUE PROCESS, EQUAL PROTECTION, OR

THE THIRTEENTH AMENDMENT PROVIDED BY A

DIRECT CONSTITUTIONAL ACTION UNDER BIVENS

OR CAREY v. PIPHUS?

c. DOES A CIVIL CAUSE OF ACTION FOR DAM-

AGES UNDER THE THIRTEENTH AMENDMENT OR

SECTION 1994 STATE A CLAIM BASED ON THE

THREAT OF LEGAL ACTION BY THE STATE, INCLUD-

ING THE LOSS OF AN INDIVIDUAL’S LIVELIHOOD,

BUT SHORT OF ACTUAL IMPRISONMENT?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...........

TABLE OF AGT IIGIRIEIED .c cccscccewecescesceenes

CPTRTIIN AFG ovis ove dhnksicdensccuctabstinsdees

FP RIMUE So cen vas ceiniad pes ecbastisscaseuunee

CONSTITUTIONAL PROVISIONS AND STATUTES

SE URRITUEED ¢ 0.00.9 60k ad5us shah hen oaneeadhaweniees

STATERANTT COD CIE ooo vide vcs auikk v £Gh oa en Kans so

REASONS FOR GRANTING THE WRIT ...........

I. THE KANSAS SUPREME COURT’S ERRO-

NEOUS DECISION ALLOWS THE STATE TO

TAKE PRIVATE PROPERTY FOR PUBLIC USE

WITHOUT PAYING JUST COMPENSATION

WHICH CONFLICTS WITH THIS COURT’S

HOLDING AND RATIONALE IN FIRST

LUTHERAN CHURCH AND DIMINISHES

THE FIFTH AMENDMENT PROTECTION...

Il. THE KANSAS SUPREME COURT’S ERRO-

NEOUS DECISION UNDER THE EQUAL

PROTECTION CLAUSE AND THE SUB-

STANTIVE AND PROCEDURAL DUE PROC-

ESS CLAUSES SANCTIONS THE STATE’S

DISCRIMINATORY TAKING OF PROPERTY

AND LIBERTY FROM A SMALL PORTION

OF ITS CITIZENS IN AN UNREASONABLE

AND ARBITRARY FASHION, WITHOUT

ANY NOTICE OR AN OPPORTUNITY TO BE

HEARD, WHICH IS CONTRARY TO THIS

COURT’S PRIOR DECISIONS AND PRO-

VIDES NO REMEDY FOR THE PAST VIOLA-

TIONS OF INDIVIDUAL FREEDOMS

GUARANTEED BY THE CONSTITUTION. ..

10

10

15

ili

TABLE OF CONTENTS-- Continued

Page

Ill. THE KANSAS SUPREME COURT’S ERRO-

NEOUS DECISION UNDER THE THIR-

TEENTH AMENDMENT AND 42 U.S.C.

SECTION 1994 PERMITS THE STATE TO

COMPEL ITS CITIZENS TO WORK FOR THE

STATE USING THE THREAT OF ANY LEGAL

OR ECONOMIC SANCTION EXCEPT

EE PE ES bs ete s ch bp oORD Cod ew se ose 20

IV. THE KANSAS SUPREME COURT’S ERRO-

NEOUS DECISION PLACES THE STATE

ABOVE THE CONSTITUTION AND

UNJUSTLY ENRICHES THE STATE AT ITS

CITIZENS’ EXPENSE BY HOLDING THAT

ITS CITIZENS HAVE NO RECOURSE

AGAINST A STATE THAT VIOLATED THEIR

INDIVIDUAL CONSTITUTIONAL RIGHTS

IN THE PAST, IF THE STATE HAS STOPPED

DOING SO BY COURT ORDER............. 23

ID & Ailtelx EKG SWBA 4 lela iva Siw ins eewse so’ 25

APPENDIX 1 (Opinion of Kansas Supreme

Ras AiWkin khan Wa smart. ccekee ald App. la

APPENDIX 2 (Opinion of Seward County District

Court)..... [dekh o Se vy OAM whee a App. 2a

APPENDIX 3 (Order of Kansas Supreme Court

Kansas Denying Rehearing)..... App. 3a

APPENDIX 4 (Class Action Petition).......... App. 4a

iv

TABLE OF AUTHORITIES

Page

Unitep States SuPREME Court CASES

Armstrong v. United States, 364 U.S. 40 (1960)........ 12

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 402 U.S. 388 (1977)........ passim

Brown v. Western Railway, 338 U.S. 294 (1949)........ 14

Carey v. Piphus, 435 U.S. 247 (1978) ........... 9, 16, 20

Carlson v. Green, 446 U.S. 14 (1980)...............2.. 17

Davis v. Passman, 442 U.S. 228 (1979)......... 16, 17, 18

First Lutheran Church v. Los Angeles County, 482

UG, Se Ree he ks Sunt pe cnnenigeer 10, 11, 12, 14, 15

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).............. 20

General Oil Co. v. Grain, 209 U.S. 211 (1908)......... 23

Hans v. Louisiana, 134 U.S. 1 (1890) ................. 19

Marbury v. Madison, 1 U.S. (Cranch) 137 (1803). ..23, 24

McKesson Corp. v. Florida Alcohol and Tobacco Divi-

sion, No. 88-92 (U.S.S.Ct. June 4, 1990) (WEST-

RAPER Side cn sbcehl nw eae sabes TREND coves based Ges 4 13

Nevada v. Hall, 440 U.S. 410 (1979).................. 19

Pennell v. San Jose, 485 U.S.°1 (1988) ................ 13

Pollock v. Williams, 322 U.S. 4 (1944) ................ 21

Radio Station WOW, Inc. v. Johnson, 236 U.S. 120

SS dO RUNG he bbV Ede cUA Wak bea ba cbascccccace 14

Schweiker v. Chilicky, 487 U.S. 412 (1988)............. 18

The Civil Rights Cases, 109 U.S. 3 (1883)............. 20

United States v. Kozminski, 487 U.S. __, 108 S.Ct.

2751, 101 L.Ed.2d 799 (1988)............ 9, 21, 22, 23

v

TABLE OF AUTHORITIES - Continued

Page

Will v. Michigan Dept. of State Police, __ U.S. ___

Se as Oe UE ook <Wv6s eee tx ennene 7, 18, 19, 24

FEDERAL Court CASES

Brault v. Town of Milton, 527 F.2d 730, rev'd on other

grounds, 527 F.2d 736 (2d Cir. 1975)............... 17

Cox v. Stanton, 529 F.2d 47 (4th Cir. 1985)........... 17

Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977)...... 17

Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981).......... 17, 19

Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977) ........ 17

Knudson v. City of Ellensburg, 832 F.2d 1142, 1149

a Bg BP PeeT Trent ey ore Tre reer 20

Low v. Armistead, 482 F.2d 1291 (4th Cir. 1978), cert.

GO, Ge a Fe TR io vcs ence ecawicen ender 17

Owen v. City of Independence, 560 F.2d 927 (8th Cir.

PN Dak Rie s'saesbsxctokehe nun) casagedineseae ek uens 17

Santiago v. NYS Dept. of Correctional Services, 725

FED. FO GREAPU. Ue TOP cnn nnnncssaseescces 17, 19

: United States ex rel. Moore v. Koelzer, 457 F.2d 892

Ge Rak EEE hack cceccenanunes cone ebrnd HERE dx <8 17

Washington v. Brantley, 352 F.Supp. 559 (M.D. Fla.

WL 54 bib sae be bok p cake tae eedeReee Bees wr kede ke 17

Yiamouyiannis v. Chemical Abstracts Service, 521

F.2d 1392 (6th Cir. 1975), cert. denied, 439 U.S.

i I TFC Err ee ree Tt eT yer er 17

vi

TABLE OF AUTHORITIES - Continued

Page

StaTE Court Cases

Bedford v. Salt Lake County, 22 Utah 2d 12, 447 P.2d

TE eer Per eT ery ere TT TTT Tee 21

Keith v. Schiefen-Stockman Ins. Agency, Inc., 209

ee OP De errr 11

State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d

Oe TEES 4 ink. b+ 0bns CR adaread ROREAS ROE KO DARKS passim

Vest v. Schafter, 757 P.2d 588 (Alaska 1988).......... 19

Unitep States CONSTITUTION

Sk EE SOE bocce bccuccasbenescaseuscsacen 16

RP Ns EI Winns ncvccccccsncesssanaccuse passim

re tr ee 19

Riedie SO EUR UME vec encccecesesecescncee passim

SE SE, GUEN FUE ss cu vo nnansecancccescss 3, 17, 20

FEDERAL STATUTES

Pe es ME WUE sc occ cccaaneseeusacncedgunen 7, 16

42 U.S.C. Section 1985..... ditun led dechencdentacehan 7

i Ss NE HU a 0x0 ve suyennnsedsesaces 3, 8, 9, 20

STATE STATUTES AND REGULATIONS

Kan. Stat. Ann. Section 22-4501, et seqg................ 4

Kan. Admin. Regs. 105-1-1, et seq .............220005- 4

SECONDARY AUTHORITIES

3 Cook and Sobieski, Civil Rights Action (1987)...... 16

vii

TABLE OF AUTHORITIES - Continued

Page

Martineau, The Attorney as Officer of the Court: Time

to Take the Gown Off the Bar, 35 S.C.L. Rev. 541

EE Fea enGd em ah be eet canteens see ec eed areakendvae 23

Shapiro, The Enigma of the Lawyer’s Duty to Serve,

SS UW NUL, TURW. Fae COMP cee c ese ecbeccceccnces 22

L. Tribe, American Constitutional Law (1978).......... 12

No.

sa.

-

In The

Supreme Court of the United States

October Term, 1990

,%

Lf

REX A. SHARP, KERRY McQUEEN, and

JAMES H. MORAIN, as individuals,

NEUBAUER, SHARP, McQUEEN,

DREILING & MORAIN, P.A., as a firm, and

ALL OTHER LAWYERS AS A CLASS REQUIRED

BY THE STATE OF KANSAS TO REPRESENT

KANSAS INDIGENT CRIMINAL DEFENDANTS,

Petitioners,

THE STATE OF KANSAS,

Respondent.

,%

4

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF KANSAS

,%

i

~ OPINIONS BELOW

The opinion of the District Court of Seward County,

Kansas is unreported, but is set forth in Appendix 2.

The opinion of the Supreme Court of the State of

Kansas is reported at 245 Kan. 749, 783 P.2d 343, and is set

forth in Appendix 1.

*

JURISDICTION

Jurisdiction of this Court to review the judgment of

the Supreme Court of the State of Kansas, entered Decem-

ber 8, 1989, rehearing denied on March 14, 1990, is

invoked under 28 U.S.C. Section 1257.

y%

_

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitutional Provisions

amend. V provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a pre-

sentment of indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any

Criminal Case to be a witness against himself,

nor be deprived of life, liberty or property, with-

out due process of law; nor shall private prop-

erty be taken for public use, without just

compensation.

amend. XIII provides:

Section 1. Neither slavery nor involuntary servi-

tude, except as a punishment for crime whereof

the party shall have been duly convicted, shall

exist within the United States or any place sub-

ject to their jurisdiction.

Section 2. Congress shall have the power to

enforce this article by appropriate legislation. -

—

amend. XIV provides in relevant part:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of laws.

Federal Statutes

42 U.S.C. Section 1994 provides:

The holding of any person to service or labor

under the system known as peonage is abol-

ished and forever prohibited in any Territory or

State of the United States; and all acts, laws,

resolutions; orders; regulations; or usages of any

Territory or State, which have heretofore estab-

lished, maintained, or enforced, or by virtue of -

which any attempt shall hereafter be made to

establish, maintain, or enforce, directly or indi-

rectly, the voluntary or involuntary service or

labor of any persons or peons, in liquidation of

any debt or obligation, or otherwise, are

declared null and void.

STATEMENT OF THE CASE

This is a class action suit brought by rural Kansas

lawyers seeking damages for past violations of their con-

stitutional rights under a court appointment system that

was held unconstitutional by the Kansas Supreme Court

in State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816

(1987) (“Smith”).

Kansas country lawyers (“Plaintiffs”) have been

court appointed to represent indigent criminal defen-

dants for many years. Over the last few years, the burden

on court appointed counsel has increased dramatically

because of the combined effect of the increase in the

number of criminal cases, the complexity of the criminal

and constitutional law, and the cost of maintaining a law

practice. Smith, 242 Kan. at 360-61, 368. Kansas court

appointments have been made for the last 20 years under

the Indigent Defense Services Act, and its more recent

rules and regulations (“Act”) promulgated by the State

Board of Indigents’ Defense Services. See Kan. Stat. Ann.

Sec. 22-4501, et seq. and Kan. Admin. Regs. 105-1-1, et seq.

Not all Kansas attorneys were court appointed under

the Act. Only about 35% of the Kansas bar were required

to represent indigent criminal defendants. The other 65%,

located mainly in large cities where public defenders

were supplied, were not required to donate any of their

time or money to indigent criminal defense. Smith, 242

Kan. at 375-76. Thus, the country lawyers and public

defenders carried the burden of representing the indigent

criminal defendants.

Under the Act, the State Board of Indigents’ Defense

Services (“State Board”) set standards and guidelines for

compensating court appointed attorneys. Without even

considering the cost of providing legal services or the

cost of a lawyer’s overhead, the State Board adopted

regulations allowing a maximum fee of $30.00 per hour,

with a $250.00 cap in felony cases which did not go to

trial, $1000.00 cap for cases that did go to trial, and

$100.00 cap for_representation of indigent grand jury

witnesses, revocation of probation hearings, and motions

to modify sentences. Id. at 345-46, 364. But the average

office overhead for court appointed lawyers was more

than the $30.00 per hour maximum fee, which was often

reduced further by the caps. Id. at 351. The payment of

legal fees to court appointed lawyers was cut even more,

approximately another 12% reduction in 1987, when the

State legislature reduced the State Board’s budget by

3.8% even though under the same budget the public

defenders’ salaries and paid overhead was not reduced.

Id. at 376.

Presented with these facts, the Honorable James J.

Smith, District Judge for Anderson County, entered an

order that court appointed lawyers were entitled to be

paid a reasonable fee of at least $68.00 per hour. Id. at

337-39. The Kansas Attorney General filed a Petition for

Mandamus to require Judge Smith to make appointments

of counsel to indigent criminal defendants as directed by

the Act. Id. at 340. The Kansas Supreme Court in Smith

unanimously declared the Act unconstitutional.

The Smith court held:

1. Although lawyers had an ethical obligation to

provide pro bono services, the State had the legal duty to

provide counsel for indigent criminal defendants, and the

“State had an obligation to compensate attorneys appoin-

ted.” Id. at 359-61.

2. The Act “on its face does not violate [substantive]

due process. . . , [but] the application or administration-

... could render it unreasonable and arbitrary.” Id. at 363.

3. “Attorney’s services are property . . . subject to

Fifth Amendment protection”, and since the Act did not

provide just compensation, “the system violates the Fifth

Amendment.” Id. at 370.

4. The Act violated the equal protection clause

because (a) it treated lawyers differently from other pro-

fessionals by requiring them to subsidize indigent crimi-

nal defense; and (b) it treated lawyers differently

depending on their geographic location. Id. at 373-77.

5. The Act did not violate the Thirteenth Amend-

ment because no Kansas attorney faced imprisonment for

refusing a court appointment. Id. at 378.

6. The Act violated Kan. Const. art. 2, Sec. 17, of the

Kansas Constitution because it did not operate uniformly

throughout the State, rather country lawyers were court

appointed and lawyers in large, urban counties were not.

Id. 381-83. .

Therefore, the Smith court struck down the Act, but

required the country lawyers to continue representing

indigent criminal defendants for another 6'/2 months

while the State took legislative or administrative action to

comply with the Constitution. Id. at 383.

With no State action being taken, Plaintiffs filed suit

in federal court seeking injunctive relief and damages for

violations of their constitutional rights. On July 1, 1988,

the State adopted a new indigent defense services system

whick made representation voluntary and increased the

hourly fee to $50.00 per hour with no caps or budget

reductions. To fund this new system, the State Board’s

annual budget was increased by more than $2,000,000.00.

This mooted Plaintiffs’ suit for injunctive relief, and the

remaining damage suit in federal court was dismissed on

Eleventh Amendment grounds. So on March 16, 1988,

Plaintiffs filed a Class Action Petition in state district

court. See Class Action Petition in Appendix 4.

Plaintiffs’ Class Action Petition raised the following

federal questions:

Counts I and II. Due Process and Just Compensa-

tion/Taking Violations.

Count III. Equal Protection Violation.

Count VI. Thirteenth Amendment Violation.

Count IX. Attorney’s fees under statutory,

common law, or constitutional

doctrines such as inverse condem-

nation.

Count X. Violation of 42 U.S.C. Section

1994.1

The State of Kansas moved to dismiss Plaintiffs’ Peti-

tion on the pleadings for failure to state a cause of action.

The State claimed it could not be a defendant in an

implied cause of action under the Due Process Clause,

Equal Protection Clause, or Thirteenth Amendment

under the rationale of Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971). Plaintiffs argued that Bivens actions had already

been recognized under those constitutional provisions

and that there was no reason for a State to be immune.

1 The state substantive causes of action raised in the Peti-

tion (Counts IV and V, unjust enrichment and Kansas Constitu-

tion Art. 2, Section 17) have been determined by the State’s

highest court, and are not before this Court for review. The 42

U.S.C. Section 1983 and 1985 claims (Counts VII and VIII) were

precluded during the appeal by this Court’s decision in Will v.

Michigan Dept. of State Police, __ U.S. __, 109 S.Ct. 2304 (1989),

and also are not being raised before this Court.

The State also argued that under the Takings/Just

Compensation Clause Plaintiffs were only entitled to

injunctive relief, not damages, because Smith had already

provided all the relief that was available. Plaintiffs, how-

ever, argued that Smith was not a damage suit so the

issue was never raised and that the State was subject to

inverse condemnation actions and had to pay from the

date of the taking.

The State also contended that the Thirteenth Amend-

ment and 42 U.S.C. Section 1994 action failed because

involuntary servitude was only actionable if it was

backed by the threat of imprisonment, which was not

alleged by Plaintiffs. Plaintiffs argued that the Thirteenth

Amendment did not require the threat of imprisonment

in a civil action, and that Section 1994 barred both volun-

tary and involuntary servitudes.

Lastly, Plaintiffs argued that if the State’s Motion to

Dismiss were granted, the State’s past constitutional

transgressions found in Smith would go without any rem-

edy, and such a result would render Plaintiffs’ constitu-

tional rights meaningless.

Without mentioning any of the specific causes of

action asserted, and only citing and briefly discussing

Smith, the state trial court granted the State’s Motion to

Dismiss. See District Court Opinion in Appendix 2. Plain-

tiffs appealed to the state court of appeals, and due to the

importance of the issues presented, the case was trans-

ferred to the Kansas Supreme Court.

The Kansas Supreme Court held that the Thirteenth

Amendment cause of action was defective for failure to

allege that Plaintiffs were threatened with imprisonment

if they did not serve as court appointed counsel. The

Kansas Supreme Court did not discuss the distinction

between 42 U.S.C. Section 1994 and the Thirteenth

Amendment, but denied relief under Section 1994.

The Kansas Supreme Court on the Takings/Just Com-

pensation Clause issue found that the theory of inverse

condemnation was not presented to the trial court and

that inverse condemnation actions did not apply to the

taking of services, only to the taking of real property. The

Kansas Supreme Court also found that Bivens actions

could not be maintained against States. Finally, the court

below concluded that even though the Act offended the

Constitution, only equitable relief, not damages, was

proper. See Opinion in Appendix 1.

Plaintiffs moved for a rehearing or modification of

the decision, arguing:

1. The importance of the decision for the constitu-

tional rights of all service providers warranted closer

scrutiny.

2. Substantive and Procedural Due Process — the

decision was contrary to the already recognized Bivens

action and to Carey v. Piphus, 435 U.S. 247 (1978).

3. Thirteenth Amendment - the decision was con-

trary to the already recognized Bivens action and to

United States v. Kozminski, 487 U.S. 2751 (1988), which did

not equate “involuntary servitude” with the “threat of

imprisonment”.

4. Section 1994 —- the decision never specifically

addressed it, and it is more broad than the Thirteenth

Amendment.

10

5. Just Compensation/Taking - the decision was

contrary to the language and intent of First Lutheran

Church v. Los Angeles County, 482 U.S. 304 (1987), which

required compensation for governmental taking of prop-

erty, and inverse condemnation was adequately plead in

the Petition, indeed the phrase “inverse condemnation”

was used in the Petition itself, and the issue was briefed

and argued by both sides on appeal.

6. Equal Protection —- the decision was contrary to

the already recognized Bivens action.

7. Violation of an individual’s freedoms guaranteed

by the Constitution required that a damage remedy be

available to give meaning to the constitutional right.

The State argued the Kansas Supreme Court’s deci-

sion was correct. Without further discussion, the Kansas

Supreme Court denied Plaintiffs’ Motion for Rehearing.

See Appendix 3.

Plaintiffs timely petitioned this Court for certiorari.

REASONS FOR GRANTING THE WRIT

I. THE KANSAS SUPREME COURT’S ERRONEOUS

DECISION ALLOWS THE STATE TO TAKE PRI-

VATE PROPERTY FOR PUBLIC USE WITHOUT

PAYING JUST COMPENSATION WHICH CON-

FLICTS WITH THIS COURT’S HOLDING AND

RATIONALE IN FIRST LUTHERAN CHURCH AND

DIMINISHES THE FIFTH AMENDMENT PROTEC-

TION.

The State of Kansas under the Act took Fifth Amend-

ment “property”, in the form of money and services, from

11

Kansas country lawyers without just compensation. The

“property” taken was worth over $2 million per year, as

shown by the necessary budget increase to fund the new

voluntary court appointment system. Plaintiffs alleged

such money and services were Fifth Amendment “prop-

erty”, which for purposes of a Motion to Dismiss on the

pleadings must be taken as true. Keith v. Schiefen-Stockman

Ins. Agency, Inc., 209 Kan. 537, 538, 498 P.2d 265 (1972).

Besides, the Kansas Supreme Court has already held: “We

conclude that attorneys’ services are property, and are

thus subject to Fifth Amendment protection.” State ex rel.

Stephan v. Smith, 242 Kan. 336, 370, 747 P.3d 816 (1987).

When Fifth Amendment pruperty is taken, just com-

pensation must be paid from the date of the taking. First

Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987).

The Kansas Supreme Court in Smith invalidated the Act,

albeit prospectively by over 6 months, but this Court

rejected that as a cure-all: “Invalidation . . . is not a

sufficient remedy to meet the demand of the Just Com-

pensation Clause.” First Lutheran Church, 482 U.S. at 319.

Rather, the State has “the duty to provide compensation

for the period during which the taking is effective.” Id. at

321.

The Kansas Supreme Court’s attempt to distinguish

this case from First Lutheran Church is not legally justified

or logically plausible. The Kansas Supreme Court held

that First Lutheran Church did not apply to all Fifth

Amendment property, only to “real property”, so the

State may take and keep without any compensation any

other type of Fifth Amendment “property” (presumably

even without a hearing as in this case). Not surprisingly,

12

the Kansas Supreme Court cites no constitutional, statu-

tory, or common law authority, not even by analogy, for

its unusual interpretation of the Fifth Amendment. Nor

does the Kansas Supreme Court offer any reason why

Fifth Amendment “property” should be categorized and

treated differently. Quite simply, other than the wrong-

doer’s self-interest in not wanting to pay back its ill-

gotten gains, there is no reason to support the Kansas

Supreme Court’s novel position.

The Fifth Amendment does not categorize types of

“property”. Nor does it provide some types of takings

can be done without making just compensation. Nothing

in First Lutheran Church states or even implies that Fifth

Amendment property is to be dissected into various cate-

gories and treated differently. Indeed, the rationale of the

Fifth Amendment dictates otherwise.

The Fifth Amendment’s guarantee that private

property shall not be taken for public use with-

out just compensation was designed to bar Gov-

ernment from forcing some people to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.

Armstrong v. United States, 364 U.S. 40, 49 (1960). See also

L. Tribe, American Constitutional Law Section 9-4 (1978)

(just compensation limits government’s power to isolate

particular individuals for sacrifice to the public good).

The rationale of the Fifth Amendment applies the same to

people who are forced to bear a public burden by having

$20,000.00 worth of land taken as it does to people who

have $20,000.00 worth of personal property or services

taken. The effect on the individual is the same. So the

result should be the same. Just compensation must be

13

paid. See Pennell v. San Jose, 485 U.S. 1, 21 (1988) (Scalia, J.

and J. O’Connor dissenting) (taxes, not regulatory tak-

ings, should be used to pay for general social ills such as

when indigents are unable to pay for necessities).

Decisive action is needed by this Court to compel the

State of Kansas to honor the Fifth Amendment and to

avoid the profound adverse impact the Kansas Supreme

Court decision would create. This case extends far

beyond the yearly $2 million taking of money and ser-

vices from a few hundred country lawyers. This case will

determine the Fifth Amendment protection afforded, if

any, to all personal property owners and service pro-

viders, which comprise a much larger segment of our

society than real property owners. Allowing the Kansas

Supreme Court decision to stand would entice the politi-

cal majority embodied in the “State” to exploit any politi-

cal minority by taking their non-real property and

keeping the spoils. The Fifth Amendment protection

would be severely undermined, if not gutted, since the

State could then do indirectly — by freely taking non-real

property to pay for the taking of real property — what it

could not do directly. Accordingly, the Kansas Supreme

Court decision should be reversed to prevent States from

profiting by violating the Constitution and to avoid ren-

dering the Taking/Just Compensation Clause protection

of private property from State usurpation meaningless.

Taking without just compensation is fundamentally

wrong and offensive to a free society. Individuals cannot

do it. Corporations cannot. The all-powerful State cannot.

See McKesson Corp. v. Florida Alcohol and Tobacco Division,

No. 88-192 (U.S.S.Ct. June 4, 1990) (WESTLAW). That

Laiedeieiaeaaitia eerie

14

fundamental concept embodied in the Fifth Amendment

over 20C years ago should not be diminished now.

The lack of legal authority or practical reasoning to

support the Kansas Supreme Court’s decision, the con-

trary language and intent of the Fifth Amendment and

First Lutheran Church, and the magnitude of the harm that

would result dictate that the erroneous Kansas Supreme

Court’s decision should be reversed, perhaps summarily,

without reaching the more difficult and complex issues

raised herein.?

2 No doubt this lack of legal support is the reason why the

Kansas Supreme Court attempted to evade this Court’s review

by relying on a hyper-technical procedural argument that the

inverse condemnation theory had not been adequately raised

in the trial court. But this Court's jurisdiction is not restricted

when a state court procedural rule is interpreted as an

“obvious subterfuge to evade consideration of a federai issue.”

Radio Station WOW, Inc. v. Johnson, 236 U.S. 120, 129 (1945).

The Kansas Supreme Court's reference to state procedural

grounds does not have fair and substantial support as an

adequate and independent state ground. Under the Kansas

“notice pleading” rules, which were modelled after the federal

rules of civil procedure, the words “inverse condemnation” do

not have to be used in the Petition. A general allegation is

sufficient. But Plaintiffs did both in their Petition. Paragraphs

13-16 of the Petition specifically alleged that under the Fifth

Amendment Taking/Just Compensation Clause the State took

Plaintiff’s property without conducting a formal condemnation

hearing, and Paragraph 23 specifically referenced the “inverse

condemnation” action. See Appendix 4. This Court has long

held that a “federal right cannot be defeated by the forms of

local practice”, such as the “over-exacting local requirements

for meticulous pleadings.” Brown v. Western Railway, 338 U.S.

294, 297-299 (1949).

(Continued on following page)

15

Il, THE KANSAS SUPREME COURT’S ERRONEOUS

DECISION UNDER THE EQUAL PROTECTION

CLAUSE AND THE SUBSTANTIVE AND PRO-

CEDURAL DUE PROCESS CLAUSES SANCTIONS

THE STATE’S DISCRIMINATORY TAKING OF

PROPERTY AND LIBERTY FROM A SMALL POR-

TION OF ITS CITIZENS IN AN UNREASONABLE

AND ARBITRARY FASHION, WITHOUT ANY

NOTICE OR AN OPPORTUNITY TQ BE HEARD,

WHICH IS CONTRARY TO THIS COURT’S PRIOR

DECISIONS AND PROVIDES NO REMEDY FOR

THE PAST VIOLATIONS OF INDIVIDUAL FREE-

DOMS GUARANTEED BY THE CONSTITUTION.

Plaintiffs alleged that they had a liberty and property

right in their legal services which was unreasonably and

arbitrarily taken without notice or a hearing in violation

of substantive and procedural due process. Plaintiffs also

alleged that their equal protection rights were violated

because lawyers were treated differently than other pro-

fessionals and businessmen and because country lawyers

were treated differently than city lawyers, all without a

reasonable basis. On the State’s Motion for Judgment on

the Pleadings, this must be accepted as true.

The Smith court found that the Equal Protection

Clause was violated, perhaps substantive due process

was violated by application of the Act, and did not

(Continued from previous page)

Not only was the issue raised in the trial court, but it was

fully briefed and argued by both sides on appeal, and decided

by the Kansas Supreme Court. “Where the state court has

considered and decided the constitutional claim, we need not

consider how or when the question was raised.” First Lutheran

Church, 482 U.S. at 313 n.8.

eaten

Ql i ae ee ab

and Sharon H. Hainley, for appellant.

H. BROWN, J. For the reasons which

follow, we affirm appellant’s conviction,

but vacate the sentence of death and

remand for imposition of a life sentence

in accord with State v. Penix (1987), 32

Ohio St. 3d 369, 513 N.E. 2d 744.

I

Admission of Victim Impact Evidence

In his second proposition of law,

appellant challenges the use of victim

impact evidence at the penalty phase of

his trial.

In the instant case, appellant

requested a presentence investigation

report pursuant to R.C. 2929.03(D)(1).

The report contained a summary of an

interview with the victim’s parents,

Ralph, Sr., and Elizabeth Harris, in

which Mr. Harris expressed the view that

appellant should be sentenced to death.

10

ete pT ea ER EP lal weal

This report was admitted into evidence.

The prosecution also called Mr. and Mrs.

Harris as rebuttal witnesses.

Mrs. Harris testified concerning the

victim’s good character. When asked if

she was proud of her son, she replied,

"Oh, God, how proud I was, a child that

never give me no problem, no nothing, no

drinking, no smoking, nothing but go to

church and come back, ***." She described

the effect on the victim’s son’: "I hate

to take him to the graveyard. He always

wants to go. He think[s] he [is] going to

see his dad." Mr. Harris testified, in

response to a question from the

prosecutor, that he believed appellant

should get the death penalty.

In Booth v. Maryland (1987), 482

U.S. 496, decided after the trial of the

instant case but before the court of

appeals issued its opinion, the United

11

Oe a ae

States Supreme Court held that the

introduction of victim impact evidence in

the penalty phase of a capital trial is

constitutionally impermissible. Victim

impact cvidence is defined in Booth as

including evidence which describes the

personal characteristics of the victim,

the emotional trauma suffered by the

victim’s family, or the family members’

opinions and characterizations of the

defendant and the crime. Id. at 502. The

court reasoned that "(t]he prospect of a

‘mini-trial’ on the victim’s character

**x* could well distract the sentencing

jury from its constitutionally required

task - determining whether the death

penalty is appropriate in light of the

background and record of the accused and

the particular circumstances of the

Crime. ***" (Emphasis added.) Id. at 507.

The holding of Booth was reaffirmed in

12

hr ‘

South Carolina v. Gathers (1989), 490

U.S. , 104 L. Ed. 2d 876, 109 S.Ct.

2207.

In State v. Post (1987), 32 Ohio St.

3d 380, 383, 513 N.E. 2d 754, 758, we

noted that the admission of victim impact

evidence at capital trials was not

expressly permitted by the Ohio statutes.

However, in Post and two subsequent

cases, State v. Sowell (1988), 39 Ohio

St. 3d 322, 530 N.E. 2d 1294, and State

v. Brewer (1990), 48 Ohio St. 3d 50, 549

N.E. 2d 491, we found the admission of

such evidence harmless in bench trials

where there was no indication that the

three-judge panel relied on the victim

impact evidence in arriving at its

sentence. See, e.g., Post, supra, at 384,

513 N.E. 2d at 759.

Four arguments have been advanced by

the state to distinguish the present case

13

from Booth and Gathers. These are: (1)

Ohio’s use of a sentencing system where

the jury’s recommendation of a death

penalty is not binding on the trial

judge, (2) distinctions between the

victim impact evidence in the instant

case and that presented in Booth, (3) the

victim impact evidence in this case was

presented to rebut appellant’s mitigation

evidence, and (4) Booth and Gathers allow

for victim impact evidence where the

killer is acquainted with cre victim.

A

Jury Recommendation

The prosecution argues that Booth v.

Maryland, supra, is distinguishable from

the instant case because an Ohio jury’s

recommendation of death is not binding on

the trial judge, while a Maryland jury

makes the final determination of

sentence. Compare Md. Ann. Code (1987),

14

ed ait itil Linen a mpl ete HAS +

Article 27, Section 413(K)(1), with R.C.

2929.03(D)(3). We are urged to extend

Post to jury trials and require the

defendant to show that the sentencing

judge was influenced by victim impact

evidence before the sentence may be

reversed.

We find this argument unpersuasive

for two reasons. First, the Booth court

held that the admission of the victim

impact evidence in the sentencing phase

of a capital jury trial is constitutional

error. Second, in Gathers, supra, the

Booth rule was applied to a case decided

under South Carolina’s capital punishment

statutes, which use a "recommendation"

System similar to Ohio’s. See S.C. Code

Ann. (1985), Section 16-3-20(C).

=

Distinctions Based on Quality

of the Evidence

15

Sits dani

sen tsi Mintoseba et in. andl tena iii des: ARETE 0 eae Fetes Met a

The court below found the admission

of the victim impact statement to be

harmless error because it was much

shorter than that at issue in Booth, and

because it contained statements blaming

Elba Ortiz for "deceiving" the victim,

which the court viewed as "favorable" to

appellant. We do not agree.

It is true that the written victim

impact statement at issue in Booth was

longer and more detailed than that

involved in the instant case, see Booth

at 509-515, but Booth prohibits

consideration of victim impact evidence.

In Gathers, supra, the court, without

reference to any presentence

investigation reports Or statements by

Surviving family members, held that it

was constitutional error for the

prosecutor, in his closing argument, to

draw inferences about the victim's good

16

App. 1d

42 U.S.C. § 1983

The first issue is whether relief is available to plain-

tiffs under 42 U.S.C. § 1983. It provides:

“Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State... , subjects, or causes to be sub-

jected, any citizen of the United States or other

person .. . to the deprivation of any rights,

privileges, or immunities secured by the Consti-

tution and laws, shall be liable to the party

injured in an action at law, suit in equity, or

other proper proceeding for redress.”

We have held that the State of Kansas has not waived

its sovereign immunity in suits seeking monetary dam-

ages under 42 U.S.C. § 1983. See Beck v. Kansas Adult

Authority, 241 Kan. 13, 21, 735 P.2d 222 (1987). More

importantly, however, the United States Supreme Court

has recently decided, subsequent to the filing of this case,

that a State is not a “person” within the meaning of

§ 1983, and thus not subject to suit under the statue. Will

v. Michigan Dept. of State Police, U.S. __, 105 L. Ed. 2d

45, 109 S. Ct. 2304 (1989). Under Will, no relief is available

to the plaintiffs under 42 U.S.C. § 1983.

42 U.S.C. § 1985(3)

The second issue is whether relief is available to

plaintiffs under 42 U.S.C. § 1985(3), which provides in

part:

“If two or more persons ...conspire... for

the purpose of depriving .. . any person... of

the equal protection of the laws, . . . [and] if one

or more persons engaged therein do, or cause to

be done, any act in furtherance of the object of

App. le

such conspiracy, whereby another is injured in

his person or property, . . . the party so injured

. May have an action for the recovery of

damages occasioned by such injury or depriva-

a ag

Although we have not directly addressed the question of

whether damages may be recovered from the State under

42 U.S.C. § 1983(3), the logic of both Beck and Will dic-

tates that they may not. Several jurisdictions addressing

the question have held that the State is not a “person”

under that statute. See, e.g., Coffin v. South Carolina Dept.

of Social Services, 562 F. Supp. 579, 585 (D.S.C. 1983). Will

confirms those decisions. We hold that relief is not avail-

able under this section.

42 U.S.C. § 1994 AND THE THIRTEENTH AMENDMENT

The third issue is whether damages may be recovered

by the plaintiffs under 42 U.S.C. § 1994, which provides:

“The holding of any person to service or

labor under the system known as peonage is

abolished and forever prohibited in any Terri-

tory or State of the United States; and all acts,

laws. .. . regulations, or usages of any Territory

or State, which have heretofore established... .

or by virtue of which any attempt shall hereafter

be made to establish, maintain, or enforce,

directly or indirectly, the voluntary or involun-

tary service or labor of any person as peons, in

liquidation of any debt or obligation, or other-

wise, are declared null and void.”

The purpose of 42 U.S.C. § 1994 is to enforce the

Thirteenth Amendment. United States v. Reynolds, 235 U.S.

133, 59 L. Ed. 162, 35 S. Ct. 86 (1914). Section 1 of the

Amendment provides:

App. 1f

“Neither slavery nor involuntary servitude,

except as a punishment for crime whereof the

party shall have been duly convicted, shall exist

within the United States, or any place subject to

their jurisdiction.” -

We discussed the Thirteenth Amendment issue in

Smith, 242 Kan. at 378, and held that the appointment

system for which the plaintiffs now claim damages does

not violate the Thirteenth Amendment. Plaintiffs argue

that we erred in our holding on this issue and that our

analysis is outdated. They protest our reliance upon

Shapiro, The Enigma of the Lawyer’s Duty to Serve, 55

N.Y.U. L. Rev. 735, 768, 770 (1980), which they argue

presents a narrow interpretation of the Thirteenth

Amendment following United States v. Shackney, 333 F.2d

475, 485-87 (2d Cir. 1964). Shackney’s interpretation was

rejected by the Ninth Circuit in United States v. Mussry,

726 F.2d 1448 (9th Cir. 1984). Mussry was a criminal case

in which the indictment and bill of particulars charged

“that the defendants unlawfully held poor, non-English

speaking Indonesian servants against their will by entic-

ing them to travel to the United States, paying them little

money for their services, and withholding their passports

and return airline tickets, while requiring them to work

off, as servants, the debts resulting from the costs of their

transportation.” 726 F.2d at 1450.

Plaintiffs also rely upon United States v. Kozminski,

487 U.S. __, 101 L. Ed. 2d 788, 108 S. Ct. 2751 (1988).

Kozminski is a criminal case involving different federal

statutes. Kozminski involved an appeal by a farm family

which was convicted of holding two mentally retarded

men in involuntary servitude. The Court rejected the

broad definition of involuntary servitude advocated by

App. 1g

the prosecution and found a narrow interpretation was

appropriate under the circumstances of the case.

Neither Mussry nor Kozminski convinces us that we

erred in Smith. The Kozminski court noted that “the prohi-

bition against involuntary servitude does not prevent the

State or Federal Governments from compelling their citi-

zens, by threat of criminal sanction, to perform certain

civic duties,” and that “the Thirteenth Amendment was

not intended to apply to ‘exceptional’ cases well estab-

lished in the common law at the time of the Thirteenth

Amendment.” 101 L. Ed. 2d at 805. In Board of Osage

County Comm’rs v. Burns, 242 Kan. 544, 546-48, 747 P.2d

1338 (1988), we discussed the history of appointed coun-

sel in Kansas. Attorneys were required to serve without

compensation as counsel for indigent defendants accused

of felonies from statehood until 1941. The power of the

courts to require service of attorneys when necessary to

meet the ends of justice is well established at common

law. Generally speaking, indigents charged with felony

offenses cannot legally be tried unless provided with

counsel. Courts have a duty to see that criminal cases are

legally and properly tried. Courts must therefore have

the power to appoint counsel. See Powell v. Alabama, 287

U.S. 45, 73, 77 L. Ed. 158, 53 S. Ct. 55 (1932); Jackson v.

State, 413 P.2d 488 (Alaska 1966); Knox County Council v.

State ex rel. McCormick, 217 Ind. 493, 29 N.E.2d 405 (1940);

Clark v. Ivy, 240 Kan. 195, 727 P.2d 493 (1986). We adhere

to our decision in Smith and hold that relief is not avail-

able to plaintiffs under 42 U.S.C. § 1994 or the Thirteenth

Amendment.

App. ih

INVERSE CONDEMNATION

The fourth issue is whether plaintiffs may recover

under the theory of inverse condemnation. While the

other claims were spelled out in the petition filed in this

case, we find no mention of inverse condemnation. Addi-

tionally, this theory was not presented to the trial court. A

legal theory may not be asserted for the first time on

appeal. Landrum v. Taylor, 217 Kan. 113, 120, 535 P.2d 406

(1975).

Even were we to consider this theory, we find no case

in which we have applied inverse condemnation to the

taking of services. Condemnation and inverse condemna-

tion ordinarily involve a taking of real property without

the owner’s consent. Lone Star Industries, Inc. v. Secretary,

Kansas Dept. of Transp., 234 Kan. 121, 124, 671 P.2d 511

(1983). It appears to be an inappropriate vehicle, in light

of all of the usual and existing theories upon which

recovery may be based, and we decline to extend it to the

claims asserted here.

UNJUST ENRICHMENT

The fifth issue is whether plaintiffs have a claim

under the theory of unjust enrichment. A claim for unjust

enrichment is in substance an action in implied contract,

and under K.S.A. 46-903 and K.S.A. 46-907, such a claim

may not be maintained against the State unless plaintiffs

have previously filed a claim on which payment has been

denied. Wheat v. Finney, 230 Kan. 217, 630 P.2d 1160

(1981). Plaintiffs contend that they have met this rule by

having filed: (1) a case in federal court; (2) this case in

state court; and (3) a claim with the Joint Committee on

App. 1i

Special Claims Against the State a month or more after

this action was commenced. These filings do not meet the

required precedent attempts at administrative resolution.

The issue is thus without merit.

BIVENS ACTION

The sixth and final issue is whether plaintiffs have

stated a claim under the theory of Bivens v. Six Unknown

Fed. Narcotics Agents, 403 U.S. 388. Bivens is an unusual

action in which the United States Supreme Court held

that the plaintiff had stated a federal damage claim

directly under the Fourth Amendment, although no fed-

eral statute authorized his action. Federal courts have not

allowed Bivens actions against the states. See Vakas v.

Rodriquez, 728 F.2d 1293 (10th Cir.), cert. denied 469 U.S.

981 (1984); Colon Berrios v. Hernandez Agosto, 716 F.2d 85

(ist Cir. 1983); and Phelps v. Wichita Eagle-Beacon, 632 F.

Supp. 1164 (D. Kan. 1986). The United States Supreme

Court has limited nonstatutory damage actions brought

under the Bivens theory and cautions against judicial

action in expanding available remedies absent statutory

mandate. See Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648,

103 S. Ct. 2404 (1983); Chappell v. Wallace, 462 U.S 296, 76

L. Ed. 2d 586, 103 S. Ct. 1362 (1983); Vakas, 728 F.2d at

1296. Plaintiffs seek to distinguish these cases on various

grounds, but the arguments are not persuasive. We see no

reason to recognize such an action against the State in

this case.

In Smith, we found that the inequities under the old

system of appointment and limited remuneration had

reached such a point as to offend constitutional rights.

App. 1j

We directed that the system be changed within a very

short period of time, and the change has occurred. We

have found no case, and none has been cited, which

mandates the award of monetary damages in such a case

in addition to equitable relief. We conclude that the dis-

trict court did not err when it granted summary judg-

ment.

The judgment is affirmed.

SIX, J., not participating.

App. 2a

SEAL

DISTRICT COURT

TWENTY-SIXTH JUDICIAL DISTRICT OF KANSAS

Keaton G. Duckworth, Kim D. Ramey, Judge

Judge 415 N. Washington

P.O. Box 280 Liberal, KS 67901

Elkhart, KS 67950 316-624-0211

316-697-2482

September 14, 1988

Rex. A. Sharp

NEUBAUER, SHARP, McQUEEN,

DREILING & MORAIN, P.A.

P.O. Box 2619

Liberal, Kansas 67905

John W. Campbell, #10349

ASSISTANT ATTORNEY GENERAL

Kansas Judicial Center, 2d Floor

Topeka, Kansas 66612

Re: Rex A. Sharp, et al. vs. The State of Kansas

Case #88-C-33

Gentlemen:

The motion for summary judgment is granted.

The plaintiff’s brought this action for damages aris-

ing out of an alleged failure by the state to pay them for

court appointed attorney services. The plaintiffs stress

several theories which they believe entitle them to

recover. The real issue here is whether or not the plain-

tiffs have stated a cause of action upon which relief may

be granted. I think not.

Damages alone do not create a cause of action. A

party must present a recognizable cause of action to

support their claim. The Kansas Supreme Court has ruled

App. 2b

in the case of State, ex rel. Stephan vs. Smith, 242 Kan.

336, that the former method of compensation for appoint-

ed counsel violated the equal protection clauses of the

U.S. and Kansas constitutions. The court required the

state to comply with existing statutes and regulations

until July 1, 1988, and then adopt “ . . . different bases for

computing appointed counsel’s compensation, the bud-

geting and funding of the same, and the possible exten-

sion of public defender systems or the adoption of

contracts to provide counsel for indigents in some areas,

or an intermixture of those and possibly other solu-

tions . . . ”. The court recognized that such action

“... takes time”, and simply stated that indigent defen-

dants must have counsel, “and that is a burden which the

bar must continue to shoulder, at least temporarily, under

the present system”.

It is clear to me that the Kansas Supreme Court

decidedly settled the issue presented here by the plain-

tiffs.

Accordingly, I am [sic] directed summary judgment

for the defense. Mr. Campbell is to prepare a Journal

Entry for Mr. Sharp’s review and approval.

Sincerely,

/s/ Kim D. Rame

Kim D. Ramey

DISTRICT JUDGE

KDR/vv

App. 3a

IN THE SUPREME COURT OF

THE STATE OF KANSAS

Rex A. Sharp, et al., Appellants

v.

)

)

) No. 88-63066-AS

State of Kansas, Appellee )

)

You are hereby notified of the following action taken in

the above entitled case:

Motion for rehearing.

This motion for rehearing is denied.

Yours very truly,

Lewis C. CARTER

Clerk, Supreme Court

Date March 14, 1990

App. 4a

IN THE DISTRICT COURT OF

SEWARD COUNTY, KANSAS

REX A. SHARP, KERRY

McQUEEN, and JAMES H.

MORAIN, as individuals,

NEUBAUER, SHARP, McQUEEN,

DREILING & MORAIN, P.A.,

as a firm, and ALL OTHER

LAWYERS AS A CLASS

REQUIRED BY THE STATE OF

KANSAS TO REPRESENT

KANSAS INDIGENT

CRIMINAL DEFENDANTS,

Plaintiffs,

Case No. __

VS.

THE STATE OF KANSAS,

Defendant.

ee ee ae ee ee, ee, ee ee

CLASS ACTION PETITION

Plaintiffs, for themselves and all other members of

the class hereinafter described, allege that the State of

Kansas wrongfully took property without just compensa-

tion or due process of law and have perpetrated other

illegalities and would show the Court as follows:

Venue and Service of Process

1. Venue is proper in this Court under K.S.A.

60-614.

2. The named Plaintiffs are all residents of the City

of Liberal, Seward County, Kansas, and have been dam-

aged in Seward County, Kansas.

App. 4b

3. The State of Kansas can be served by serving the

Kansas Attorney General, pursuant to K.S.A. 60-304(d)(5),

or the Secretary of State pursuant to K.S.A. 75-418.

Class Allegations

4. This action is brought by Plaintiffs as a class

action, on their own behalf and on behalf of all others

similarly situated, under the provisions of K.S.A. 60-223,

for actual damages for a taking, or partial taking, of

property or a liberty interest without just compensation,

and for consequential damages, prejudgment interest at

the maximum allowable rate, and attorneys’ fees and

costs.

5. The class represented by Plaintiffs in this action,

of which Plaintiffs are themselves members, consists of

all lawyers required by the State of Kansas to represent

criminal indigent defendants in Kansas pursuant to the

Indigent Defense Services Act or its statutory predecessor

(“Act”) or the rules and regulations under the Act.

6. The exact number of members of the class, as

identified above, is not known, but is estimated to be

more than one thousand members. The class is so

numerous that joinder of individual members is impracti-

cable.

7. There are common questions of law and fact in

the action that relate to and effect the rights of each

member of the class and the relief sought is common to

the entire class, namely, the common questions of law

being whether there was, and/or is, an unconstitutional

taking of property from Plaintiffs, whether the taking was

App. 4c

done according to due process of law, what would consti-

tute “just compensation” for the property taken from

Plaintiffs, whether the Act, rules, and regulations were in

violation of the Equal Protection Clause and, if so, what

remedy Plaintiffs have for a violation of their constitu-

tional rights.

8. The claims of Plaintiffs are representatives of the

class in this action and are typical of the claims of the

class in that the claims of all members of the class, includ-

ing Plaintiffs, depend on a showing of the acts and omis-

sions of Defendants giving rise to the right of Plaintiffs to

the relief sought. There is no conflict as between any

individual named Plaintiff and other members of the

class with respect to this action, or with respect to the

claims for relief.

9. The named Plaintiffs are the representative par-

ties for the class, and are able to, and will, fairly and

adequately protect the interest of the class. Thte attorneys

for Plaintiffs are experienced and capable in trial and

appellate practice. Of the attorneys designed as counsel

for Piaintiffs, Rex A. Sharp, Gene H. Sharp, Kerry E.

McQueen, and James H. Morain, will actively conduct

and be responsible for Plaintiffs’ case.

10. This action is properly maintained as a class

action in that the prosecution of separate actions by indi-

vidual members of the class would create a risk of vary-

ing adjudications with respect to individual members of

the class which would establish incompatible standards

of conduct for the Defendant.

11. This action is also properly maintainable as a

class action in that the prosecution of separate action by

App. 4d

individual members of the class would create a risk of

adjudication with respect to individual members of the

class which would as a practical matter be dispositive of

the interest of the other members not parties to the adju-

dication, or would substantially impair or impede their

ability to protect their interest.

12. This action is also properly maintained as a class

action as the questions of law and fact common to the

members of the class predominate over any questions

effecting only individual members, and a class action is

superior to other methods for a fair and efficient adjudi-

cation of the controversy.

COUNT I & II: DUE PROCESS AND

JUST COMPENSATION/TAKING VIOLATIONS

13. Defendant, under the Act, rules, and regula-

tions, has been engaged for many years, in a continuing

course of conduct to deprive, or partially deprive, Plain-

tiffs of their property or liberty interests to be used as a

public good.

14. Defendant never brought formal condemnation

proceedings as required by due process of law under the

Fifth and Fourteenth Amendment to the U.S. Constitution

before taking, or partially taking, Plaintiffs’ property or

liberty.

15. By state law, Plaintiffs have a protected liberty

interest in their services. Plaintiffs have been and are the

sole owner and beneficiaries of their legal services and

other property with the full rights to own, sell, and

derive benefits from the same.

App. 4e

16. Although Defendant has compensated Plaintiffs

for some of what Defendant took, Defendant has never

offered or made full compensation to Plaintiffs for the

taking over the years.

COUNT III: EQUAL PROTECTION VIOLATION

17. Defendant, under the Act, rules, and regula-

tions, has been engaged in conduct violative of the U.S.

Constitutional Equal Protection Clause because Defen-

dant imposed a financial burden (1) on some, but not all,

attorneys; (2) some attorneys that it did not impose on

any other group of citizens; and (3) some, but not other,

attorneys depending on their geographic location.

COUNT IV: VIOLATION OF STATE CONSTITUTION

18. Defendant violated Art. 2, §17 of the Kansas

Constitution because the Act did not operate uniformly

because attorneys were treated differently depending on

where they chose to practice.

COUNT V: UNJUST ENRICHMENT

19. Defendant accepted and used Plaintiffs’ time,

money, and services but has not paid full value for same

and have thereby been unjustly enriched.

COUNT VI: THIRTEENTH AMENDMENT VIOLATION

20. Defendant has unconstitutionally appointed

Plaintiffs to represent indigent criminal defendants in

App. 4f

violation of the Thirteenth Amendment to the U.S. Con-

stitution which prohibits involuntary servitude.

COUNT VII: 42 U.S.C. §1983

21. Defendant (and its agents, employees, and law-

yers) has directly and personally participated in the

above described conduct to deprive Plaintiffs of their

constitutional rights. In doing so, Defendant acted under

color of State law.

COUNT VIII: 42 U.S.C. §1985(3)

22. Defendant (and its agents, employees, and law-

yers) has directly and personally participated in a con-

spiracy for the purpose of depriving, either directly or

indirectly, Plaintiffs of their equal protection rights and

other federal and state rights as described above. Defen-

dant by its conduct has and is causing injury to Plaintiffs’

property and depriving them of liberty. A class based,

invidiously discriminatory animus was behind the con-

spirators’ actions. The conspirators discriminated against

a readily recognizable class, specifically Plaintiffs.

COUNT IX: ATTORNEY FEES

23. Plaintiffs’ counsel are entitled to attorney fees

under 42 U.S.C. §1988; the common fund/common bene-

fit doctrine; and/or the Constitutional or common law

doctrine that in an inverse condemnation proceeding that

Plaintiffs are entitled to be made whole such that their

attorneys fees, expert witness fees, and other costs of

App. 4g

obtaining the fair market value of what has been taken

from them should be paid for by Defendants. 3

COUNT X: 42 U.S.C. §1994

24. Defendant through acts, laws, resolutions,

orders, regulations, or other usages of the State of Kansas

have established, maintained, and enforced, directly or

indirectly, the voluntary or involuntary service of Plain-

tiffs in liquidation of the supposed obligation Plaintiffs

have to represent indigent criminal defendants. Defen-

dant has maintained Plaintiffs in involuntary service by

coercion of State law.

Exhaustion of State Administrative Remedies

25. In the unlikely event that the causes of action

stated herein are construed to require notice under the

Kansas Tort Claims Act or K.S.A. 4-901, et seq., such

notice has already been given by filing a Complaint in

Federal District Court in Wichita. Sharp, et al. v. Kansas,

No. 88-1001-K. (U.S. District Court for District of Kansas,

filed Jan. 4, 1988, now dismissed as to action against the

State of Kansas for past damages).

WHEREFORE, Plaintiffs pray, for themselves and all

other members of the class that:

1. The rights of the class members to maintain and

recover under this suit be adjudicated and declared;

2. Plaintiff class be awarded actual damages, conse-

quential damages, pre-judgment interest, and post-judg-

ment interest far in excess of $1,060,000.00;

—————

App. 4h

3. Plaintiffs by [sic] awarded attorney’s fees and

costs for prosecuting this suit;

4. Plaintiffs have such other relief as the Court may

deem appropriate.

NEUBAUER, SHARP, McQUEEN,

DREILING & MORAIN, P.A.

419 N. Kansas - P.O. Box 2619

Liberal, -KS 67905-2619

(316) 624-2548

By /s/ Rex. A. Sharp

Rex A. Sharp

Counsel for Plaintiffs