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1 IN THE DISTRICT COURT OF CRAWFORD COUNTY, KANSAS

2 ERIC M. MUATHE, et al., )

)
3 Plaintiffs, )
)
4 vs. ) CASE NO. 15CV79P
)
5 HONORABLE KURTIS LOY, et al., )
)
6 Defendants. )
NOAH IAN DAY, )
7 )
Plaintiff, )
8 )
vs. ) CASE NO. 15SC70P
9 )
MY TOWN MEDIA, )
10 )
Defendant. )
11 NOAH IAN DAY, )
)
12 Plaintiff, )
)
13 vs. ) CASE NO. 15SC71P
)
14 LORI FLEMING, )
)
15 Defendant. )
NOAH DAY, )
16 )
Plaintiff, )
17 )
vs. ) CASE NO. 15SC85P
18 )
LORI FLEMING, )
19 )
Defendant. )
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TRANSCRIPT OF MOTIONS
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PROCEEDINGS had before the Honorable
22
JACK BURR, Senior Judge, assigned to the District
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Court of Crawford County, Kansas, at Pittsburg,
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Kansas, on the 18th day of April, 2016.
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1
APPEARANCES:
2
The Plaintiffs did not appear.
3
The Defendants Kurtis Loy, Andrew Wachter,
4
Robert Fleming, Lori Fleming, Jeffry Jack, Oliver Kent
5
Lynch, Janice Russell, Richard Smith, John Sanders,
6
Stanton Hazlett, Tim Grillot appearing by and through
7
their counsel, Mr. Stephen Phillips, Assistant
8
Attorney General, Memorial Bldg, 2nd Floor, 120 SW
9
10th Avenue, Topeka, KS 66612-1597.
10

11 The Defendants Kansas Judicial

12 Qualifications Panels A and B appearing by and through

13 their counsel, Ms. Carrie A. Barney, Assistant

14 Attorney General, 120 SW 10th Avenue, 2nd Floor,

15 Topeka, KS 66612-1597.

16

17 The Defendant Michael Gayoso, Jr., appearing

18 by and through his counsel, Mr. James Emerson,

19 Crawford County Counselor, P.O. Box 68, Girard, KS

20 66743.

21

22 The Defendant Lori Fleming appearing by and

23 though her counsel, Mr. Dennis D. Depew, Deputy

24 Attorney General, 120 SW 10th Avenue, 2nd Floor,

25 Topeka, KS 66612-1597.
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1 THE COURT: My understanding is that this is Case

2 No. 15CV79P, it would be entitled Eric M. -- is that

3 pronounced Muathe?

4 MR. PHILLIPS: I believe it is Muathe.

5 MR. EMERSON: I believe so.

6 THE COURT: Okay. And others, and those

7 plaintiffs appear pro se in this case, versus Judge

8 Kurtis Loy, and others, as listed in the caption.

9 Let me tell you that my name is Jack Burr. I'm a

10 Senior Judge who has been assigned to this case and

11 I'm one of a long line of judges apparently who have

12 been involved, and I'm here from Goodland by

13 assignment of the Supreme Court, so you are stuck with

14 me, at least for a while.

15 Would you announce your appearances, please.

16 MR. PHILLIPS: Steve Phillips, Assistant Attorney

17 General, and I represent Kurtis Loy, Andrew Wachter,

18 Robert Fleming, Lori Fleming, Jeffry Jack, Oliver Kent

19 Lynch, Janice Russell, Richard Smith, John E. Sanders,

20 Stanton Hazlett, Tim Grillot.

21 THE COURT: All right.

22 MS. BARNEY: Your Honor, Carrie Barney, Assistant

23

24 THE COURT: I'm having trouble hearing you.

25 MS. BARNEY: I'm sorry.

 4

1 THE COURT: I've got a cold, number one; and,

2 number two, I don't hear very well.

3 MS. BARNEY: Your Honor, Carrie Barney, Assistant

4 Attorney General, here on behalf of Defendants

5 Judicial Qualifications Panels A and B.

6 THE COURT: Okay. Thank you.

7 MR. EMERSON: Your Honor, Jim Emerson, Crawford

8 County Counselor, here on behalf of Michael Gayoso,

9 County Attorney.

10 THE COURT: All right.

11 MR. DEPEW: Your Honor, Dennis Depew, Deputy

12 Attorney General, I have the afternoon cases so I'm

13 just here a little early.

14 THE COURT: Okay. And I may have some questions

15 about those too when we finish here but, in any event,

16 apparently no appearances are made, nobody -- no one

17 appears in the courtroom at least either on behalf

18 of or the plaintiffs themselves. Have you heard

19 anything, Mr. Phillips?

20 MR. PHILLIPS: No, Judge, we have not and I have

21 checked with my office and we just checked with the

22 Clerk's Office and nothing has been filed here.

23 THE COURT: Okay.

24 MR. PHILLIPS: The last

25 THE COURT: Well, I have not received anything,

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1 nor have I heard anything.

2 MR. PHILLIPS: We got a letter last Thursday,

3 Friday, saying something about they wanted a

4 continuance.

5 THE COURT: Yeah, I got a motion to continue but

6 since I already had this -- this trip planned and I

7 have not been down here on these cases, I decided to

8 corne down and see what happened. And my questions, I

9 guess, since I don't have the plaintiffs here, if --

10 and correct me if I'm wrong, I currently have a motion

11 on file by both parties to dismiss.

12 I also have a motion by the plaintiffs asking to

13 dismiss the motion to dismiss on their behalf. I have

14 a response to the motion to dismiss by the plaintiffs,

15 by you, I believe, Mr. Phillips, indicating that you

16 don't -- it has already been dismissed in your

17 opinion, but you want to talk about sanctions; is that

18 correct?

19 MR. PHILLIPS: Yes, Judge, and then they moved to

20 reinstate it. They filed their 60-241 motion to

21 dismiss, then when I opposed it they said we want to

22 reinstate it.

23 THE COURT: No, I understand that. And it

24 appeared to me their reasoning in that response was we

25 don't want any sanctions. We don't mind the

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1 dismissal, we don't want sanctions.

2 MR. PHILLIPS: I want sanctions, Judge.

3 THE COURT: No, I understand that, but they

4 don't.

5 MR. PHILLIPS: Yes.

6 THE COURT: Okay. Now, let me hear -- what are

7 you asking for in the way of sanctions?

8 MR. PHILLIPS: Judge, I'm asking for filing

9 restrictions, and I've patterned the restrictions I'm

10 requesting off of a reported case that approved

11 restrictions just like these. They are set forth in

12 more detail in my motion, but basically before any of

13 these plaintiffs could file a new case, it would have

14 to be reviewed by the local Administrative Judge or

15 that Judge's designee to see whether it was

16 essentially frivolous or not.

17 After that screening, it could go ahead and be

18 docketed if the Judge approved it, otherwise, it could

19 not be docketed. And the case I think I cite as

20 authority for that is State VS. Lynn.

21 In my motion for sanctions, I cite a long list of

22 cases that various of these plaintiffs have filed that

23 were absolutely frivolous. And if you look at this

24 case, they have done, obviously, no meaningful legal

25 research on what a class action is, or how you bring

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1 it, and this case can only be described as for

2 purposes of harassment against the various defendants

3 in this case.

4 But what I'm asking for is filing restrictions as

5 is set forth in more detail in my motion.

6 THE COURT: So basically your sanctions, what you

7 are requesting is a predetermination of at least some

8 indication of merit prior to filing.

9 MR. PHILLIPS: Correct, Judge.

10 THE COURT: Let me ask you this. The plaintiffs,

11 I wish one or more of them were here actually, the

12 plaintiffs have indicated that they now have an

13 attorney and they cite a name, I don't know the name,

14 but I believe in Kansas City. I assume Kansas City,

15 Kansas, but somewhere in Kansas City, and that they

16 either have or are going to file a federal lawsuit.

17 Do you know whether that has been filed?

18 MR. PHILLIPS: The federal lawsuit has been

19 filed, the attorney did file it.

20 THE COURT: Okay. And it apparently ind~cates

21 many, if not all, of the same complaints?

22 MR. PHILLIPS: The major complaint in that

23 federal lawsuit is the e-mail allegedly sent by Judge

24 Lori Fleming to one of the owners of the radio

25 station. That federal case is just against, as I

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1 remember it, Judge Fleming and Judge Loy, and I can

2 even give you a copy of the complaint if you'd like.

3 THE COURT: I don't know that I need it but

4 apparently we are talking more about involving the

5 small claims cases than we are the case we are talking

6 about now.

7 MR. PHILLIPS: I believe that is correct, Judge,

8 I don't think there is much overlap between this case

9 and their federal one.

10 THE COURT: I see. I was under the assumption

11 that the federal case, since the plaintiffs had asked

12 that this be dismissed, included the same complaints

13 as in the Chapter 60 case here --

14 MR. PHILLIPS: Not yet, Judge.

15 THE COURT: but that's not the case.

16 MR. PHILLIPS: That's not the case.

17 THE COURT: Okay. Well--

18 MR. PHILLIPS: The federal case has not been

19 served for whatever reason. It has been filed but the

20 attorney has not requested summons be issued in that.

21 THE COURT: Yeah. Well, no appearance is made by

22 the plaintiffs or anyone on their behalf. I'm going

23 to find that this case, Case No. 15CV79P, has, in

24 fact, been dismissed.

25 I am going to deny the reinstatement requested by

(
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1 the plaintiffs of their -- in other words, doing away

2 with their request to dismiss. I think if both

3 parties request a case be dismissed, and I think it is

4 mentioned in your brief, Mr. Phillips, that dismisses

5 the case. It is simply a matter of recording it at

6 that point, and so I'm recording it now and the case

7 will be dismissed.

8 Now, insofar as the sanctions are concerned, I

9 have a little concern about those, I guess, but,

10 obviously, there is nobody here to tell me, right or

11 wrong, why they shouldn't be granted and the request

12 is clearly made and notice given.

13 So I'm going to go ahead and grant your request,

14 Mr. Phillips. I don't want to -- I want to make sure

15 you include in there the fact that it is not

16 necessarily the Administrative Judge, because he's

17 also a party to this action, so his designee or the

18 designee of the judicial system of the State of

19 Kansas, I don't know how you want to word it, but I

20 want to leave enough leeway that somebody gets to make

21 the determination that -- and, of course, somebody who

22 apparently is acceptable to the plaintiffs and also

23 acceptable to the defense, and we will see what

24 happens. But basically I'm going to grant your

i
~ 25 request for the sanctions.
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1 Now, let's see if I have any other questions

2 about this case. They also have in this case a motion

3 on file asking that I disqualify but I did not receive

4 any affidavit attached to that motion in this case,

5 did you?

6 MR. PHILLIPS: No, Judge, and I think that is

7 as I understand the statute, that is the proper

8 procedure. There is supposed to be a hearing first.

9 THE COURT: Oh, yeah.

10 MR. PHILLIPS: And at the hearing

11 THE COURT: I agree and I make the determination

12 as to whether I feel there is a reason to disqualify

13 and so forth and then you have to file an affidavit.

14 MR. PHILLIPS: And I suggested in one of my

15 responses that it be taken up at this hearing, I mean,

16 they were on notice.

17 THE COURT: Right. Well, In any event, I have not

18 received an affidavit so I didn't have anything even

19 to send on to another Judge if I was inclined to do

20 so; but, in any event, I do not find that the motion

21 itself indicates the reason for me to disqualify.

22 Since no affidavit was filed, I have not taken

23 any further action on that and don't intend to at this

24 point. And this case is dismissed, the request for

,,
j 25 sanctions is granted. What else do we need to talk
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1 about in this case today?

2 MR. PHILLIPS: Do I need to do a Rule 170 journal

3 entry, Judge?

4 THE COURT: I would -- yes, I do want you to do

5 the journal entry and I think, under the

6 circumstances, a Rule 170 probably would be the way to

7 go.

8 MR. PHILLIPS: Yes, sir.

9 THE COURT: And you can forward that to me at --

10 probably better forward it to my house, that way --

11 I'm at the courthouse in Goodland reasonably regularly

12 but I'm not there all the time. And my address is

13 MR. PHILLIPS: How about we do that later off the

14 record?

15 THE COURT: That's fine, I will give it to you.

16 MR. PHILLIPS: Okay.

17 THE COURT: I will let you know. I want to ask a

18 couple questions of Mr. Depew, is it?

19 MR. DEPEW: Yes, sir.

20 THE COURT: Yeah. I know these are scheduled for

21 this afternoon but I'm not sure we are going to be

22 able to do anything this afternoon anyway. Have you

23 heard anything on either of these small claims cases?

24 MR. DEPEW; I have had phone calls with Mr. Day,

25 who is the plaintiff.

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1 THE COURT: Right.

2 MR. DEPEW: And back as early as February he

3 indicated to me that he wanted to dismiss the small

4 claims cases.

5 THE COURT: He kind of indicates that in a more

6 recent letter.

7 MR. DEPEW: Yes. And so what I did is I prepared

8 a stipulated order of dismissal and I mailed it to

9 him. He indicated that he's now living in Denver,

10 Colorado.

11 THE COURT: Oh.

12 MR. DEPEW: And so I mailed that to him back in

13 February.

14 THE COURT: Uh-huh.

15 MR. DEPEW: And I even included a stamped

16 self-addressed envelope back to me so it would be very

17 easy for him to get it back. I never heard anything.

18 And then when he filed here in very late March his

19 most recent letters, I called him, and I just said,

20 Mr. Day, I'm kind of confused as to why you are filing

21 more things when I sent you the stipulated order of

22 dismissal and he said well, I signed that and I sent

23 it back to you and I said well, I've not received it.

24 And so he said that he had difficulty at times

25 with the mail at his apartment so I sent him another

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1 one along with another stamped, self-addressed

2 envelope and asked him to please mail that at a Post

3 Office. I have not received it as of this morning's

4 mail in my office.

5 THE COURT: Well, let me suggest something to you.

6 I was thinking about this before the hearing. I've

7 written out a letter, which that's one of the bad

8 things about being a Senior Judge, I don't have any

9 staff and I don't type, so I will have to find

10 somebody to type it for me but, in any event, I have

11 written out a letter and basically addressed it to the

12 parties in the two small claims cases and basically

13 what I'm saying is that I'm aware that he's asked me

14 to disqualify and that I was not aware that he has

15 filed an affidavit.

16 I didn't I got a copy of a letter saying that

17 he was asking me to disqualify but he didn't send me a

18 copy of the affidavit, so I didn't know there was one

19 until I saw it this morning in the file and I'm

20 pointing that out in this letter but I also take note

21 that he's advised me there is a Federal Court case and

22 so forth, and I'm basically telling him that I want to

23 hear from him by May 3 if he wants to dismiss these

24 cases. If not, I'm going to forward the affidavit on

25 to whoever they tell me to for determination and go

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1 from there.

2 MR. DEPEW: Well, Your Honor, I would point out

3 KSA 20-311(f) --

4 THE COURT: Yeah.

5 MR. DEPEW: And in that statute it states that

6 there is a clear time limit by which someone must file

7 a formal request for recusal of a Judge and that is

8 seven days after the pretrial or seven days after

9 receiving written notice of the Judge before whom the

10 case is to be heard.

11 Your appointment in this case in these two

12 small claims cases was made --

13 THE COURT: Sometime ago.

14 MR. DEPEW: months ago and so we would -- we

15 would object to

16 THE COURT: So you are indicating that on

17 procedural grounds I don't even need to give him that

18 notification.

19 MR. DEPEW: That's our position, Your Honor, and

20 I think that -- I think you can -- because I read his

21 March 30 letter filing the same way you do, which is I

22 want to dismiss this case.

23 THE COURT: That's the way it appears to me.

24 MR. DEPEW: And so we would ask that we go ahead

25 and dismiss the case.
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1 THE COURT: Well, you know, it is probably not a

2 bad request simply from the standpoint if there is

3 some reason he can show me why I ought to reconsider

4 that, I suppose I could do it. And under the

5 circumstances, I don't force -- I guess what I'm

6 trying to do is get out of town before this afternoon

7 to be quite frank.

8 MR. DEPEW: I understand and I would feel the

9 same way, Your Honor.

10 THE COURT: I don't see any reason for me to hang

11 around, and I will make them aware in the Clerk's

12 Office that if Mr. Day does happen to show up, and

13 there is no indication that you've had and I certainly

14 haven't had any, that he's going to show.

15 MR. DEPEW: He indicated to me that he did not,

16 in fact, want to drive from Denver.

17 THE COURT: Well, I almost drove from Denver.

18 MR. DEPEW: I know.

19 THE COURT: And I don't blame him.

20 MR. DEPEW: You could have carpooled, Your Honor.

21 THE COURT: I don't have anything against

22 Pittsburg, it is just quite a ways from where I live.

23 I'm going to go along with you, Mr. Depew. I'm just

24 going to dismiss these on the basis that he's filed a

~ 25 federal lawsuit including the same allegations. He's

"
 16

1 indicated that to me in his letter, or letters maybe I

2 should say, and I'm just going to note a dismissal.

3 We will proceed from there.

4 MR. DEPEW: All right. The two cases that --

5 THE COURT: Oh.

6 MR. DEPEW: that I'm involved in this

7 afternoon --

8 THE COURT: Yeah.

9 MR. DEPEW: -- are Noah Day vs. Lori Fleming.

10 THE COURT: Right.

11 MR. DEPEW: 15SC85P and 15SC71P.

12 THE COURT: Okay. Now, and --

13 MR. DEPEW: And there is also a suit against -- a

14 separate small claims suit against My Town Media that

15 is -- I am not here on.

16 THE COURT: I didn't realize that. I thought

17 there were only two of them and I see what you are

18 talking about now. Now, can you tell -- enlighten me

19 on the other one, it is 70P, I think.

20 MR. DEPEW: Yes. It is basically exactly the

21 same thing. He is suing the radio station, because

22 they terminated the advertising contract. What he

23 neglects to mention in any of his paperwork was that

24 when they terminated it they refunded --

25 THE COURT: It is a part of the same series of

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1 allegations.

2 MR. DEPEW: It is and the radio station is a

3 defendant in the federal lawsuit as well.

4 THE COURT: I am going to dismiss cases 15SC70P,

5 15SC71P and 15SC85P, isn't it?

6 MR. DEPEW: Yes, sir.

7 THE COURT: And for the reasons stated. Now, I

8 suppose I can jot a dismissal on the one that you are

9 not involved in, Mr. Depew, but since you have the

10 facilities to do so.

11 MR. DEPEW: I will happy to prepare them.

12 THE COURT: If you would forward me the same form

13 for the third case that you are not involved in, I

14 would appreciate it.

15 MR. DEPEW: I will do so.

16 THE COURT: And if you would step into chambers

17 afterwards, I will make you aware of what my home

18 address is and how you can send that. Are there any

19 other questions about any of those cases at this

20 point?

21 MR. DEPEW: No, Your Honor.

22 MR. PHILLIPS: I would join Dennis's comments

23 about 20-311(f). I do think there is also a time

24 limitation in his motion for recusal.

25 THE COURT: Yeah. Well, and I'm trying to -- I

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1 get one of these every once in a while and try to

2 picture it in my mind and I think you are right. I

3 don't have a problem with that. Anything further?

4 MR. DEPEW: No, Your Honor.

5 MR. EMERSON: No.

6 THE COURT: Well, Court will be in recess, I

7 guess.

8 (Whereupon the proceedings concluded at 10:22

9 a.m., April 18, 2016.)

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1 STATE OF KANSAS)
) SSe
2 CRAWFORD COUNTY)

3 CERTIFICATE

4 If Shaun J. Higgins, a Certified Shorthand

5 Reporter, by virtue of the laws of the State of

6 Kansas, and the regularly appointed, qualified and

7 acting official Reporter for the Eleventh Judicial

8 District of the State of Kansas do hereby certify

9 that as such official reporter, I was present at and

10 reported in machine shorthand the above and

11 foregoing proceedings had on the date above set out

12 before the Honorable JACK BURR, Judge of the Eleventh

13 Judicial District of the State of Kansas, Sitting in

14 and for the County of Crawford.

15 I further certify that pursuant to law my

16 shorthand notes were transcribed under my supervision

17 and that the foregoing is a true and correct

18 transcript of my notes in said case.

19 Signed, officially sealed, and filed with

20 the Clerk of the District Court this ~Y'd day of

21 ~, 2016.

22

23
~G 'b\ irl'/ r'\
SHAUN<J. HIGGI~~-~RM~R------
KS CSR #0904
24 OFFICIAL COURT REPORTER

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