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State ex rel Morrison v. Price

December 7, 2007


Original action in quo warrantor. Respondent David Martin Price is permanently enjoined from unauthorized practice of law; case remanded to Commissioner with directions.


1. Filing of a notice of removal under 28 U.S.C. § 1446 (2000) automatically stays state court proceedings, pending an order of remand by a federal district judge.

2. On the facts and record of this original quo warrantor action, it is held: (a) One individual respondent, who has engaged in the unauthorized practice of law before this court, is enjoined permanently from appearing in any Kansas legal proceeding in any representative capacity for another; from taking any action intended to assist nonmembers of the state bar of Kansas in the presentation of any legal matter; from preparing or aiding in the filing of any pleading or legal document in a Kansas controversy or legal proceeding except when doing so solely on his own behalf; and/or from counseling or advising any nonmember of the state bar on any legal matter whatsoever; (b) this action against the remaining respondents is remanded to the Commissioner for further proceedings; and (3) the individual respondents' second Motion to Dismiss and request for hearing are denied.

The opinion of the court was delivered by: Beier, J.

This is an original quo warrantor action filed by the Attorney General's office on behalf of the State to enjoin what is alleged to be unauthorized practice of law by Respondents David Martin Price, Janice Lynn King, Rosemary Denise Price, and Pro Se Advocates, an association in whose name they do business. None of the individual Respondents is licensed as a Kansas lawyer.

The petition was filed on April 27, 2006. It attached two digital video disc recordings of sworn statements given by Theron and Jennifer Frost, two of the individuals alleged to be victims of Respondents' unauthorized practice of law. In the statements, the Frosts describe what they understood to be legal research and advocacy performed on their behalf by certain of the Respondents in exchange for fees. The services provided included preparation of pleadings to be filed in court and preparation of a demand letter to be sent to a former employer of Jennifer Frost. At the direction of Respondents, the Frosts signed the documents prepared for them.

Respondents pursued dismissal of this quo warrantor action, which this court denied on June 29, 2006. The same date, we appointed Senior Judge Jack Lively as Commissioner to "conduct evidentiary proceedings and to make findings of fact and conclusions of law necessary for this Court's final determination and judgment in this case." We also stated:

"Commissioner Lively is hereby authorized and empowered to fix the time and place for hearings; to administer oaths and affirmations; to decide motions with or without a hearing; to cause the depositions of witnesses to be taken as he deems necessary; to receive evidence and take testimony; to issue subpoenas to witnesses and to compel their attendance and testimony at any hearing; to require the production of any papers, books, documents and records, whether in written or electronic form, he deems necessary; to do any and all other things required so that a complete hearing may be had on all pertinent and relevant matters raised or which may hereafter be raised by the parties involved in this original proceeding; and to rule upon all legal questions presented in connection with any and all such matters."

The Respondents filed a Notice of Removal to federal court on July 26, 2006. Two months later, Judge Julie A. Robinson of the United States District Court for the District of Kansas remanded the proceeding on motion of the State. She included the following language in her Memorandum Order and Opinion:

"The Notice of Removal ostensibly asserts a federal [counterclaim] against petitioner and its counsel under 42 U.S.C. §§ 1983 and 1985, alleging petitioner has brought a willful, malicious and frivolous action. The Notice also appears to base removal on [R]espondents' contention that the underlying action to enjoin the unauthorized practice of law is an infringement upon their First Amendment rights.

"The Court agrees with [the State] that removal was improper. The Petition in Quo Warrantor consists of an action exclusively under the laws of the State of Kansas to enjoin respondents from engaging in the unauthorized practice of law within the State of Kansas. 'The regulation of the practice of law is a state matter,' and the Tenth Circuit recently held that an action to enjoin the unauthorized practice of law did not fall within the federal district court's federal question jurisdiction. Moreover, [Respondents'] purported federal law [counterclaim] does not create federal question jurisdiction justifying removal, nor can jurisdiction be conferred by counterclaim. Likewise, it is well-established that a case may not be removed to federal court on the basis of a federal defense, including a constitutional defense based on First Amendment considerations. Finally, [R]espondents failed to timely comply with 28 U.S.C. § 1446(b), which requires a notice of removal of a civil action or proceeding within thirty days of service. Respondents were served on May 1, 2006, but did not file their notice of removal until July 26, 2006, just under three months after service. . . .

"Having no jurisdiction over this case, the Court will not address any other pending matters or arguments, except the matter of attorney's fees and costs. . . .

"For the reasons set forth in its determination that remand of the case is required, the Court concludes that [R]espondents lacked an objectively reasonable basis for seeking removal. Although [R]espondents proceed pro se, they are familiar with the procedures and limitations on removal jurisdiction, having previously removed actions from state court to federal court that were remanded. [The State] was required to devote time and resources responding to a facially meritless motion, as well as multiple orders to show cause filed by [R]espondents. As such, the Court will require [R]espondents to pay [the State's] attorney's fees and costs expended in defending this frivolous removal litigation. [The State] is hereby ordered to submit an accounting of its attorney's fees and costs association with the improper removal of this action."

After the remand, Commissioner Lively ordered Respondents to answer written discovery and to appear for depositions scheduled for October 24, 2006. Respondents attempted to appeal Judge Robinson's remand order to the United States Tenth Circuit Court of Appeals. Also, the day before the depositions ordered by Commissioner Lively were to take place, Respondent King filed a second Notice of Removal for this action. Again, the State moved to remand.

Judge Robinson had not acted on the State's second remand motion when Commissioner Lively went forward with a December 5, 2006, hearing on the State's "Motion for Sanctions Based Upon [Respondents'] Failure to Comply with Order of the Supreme Court Regarding Discovery" and the State's "Motion Renewing Its Previous Stipulation to [Respondents'] Motion for Judgment o[n] the Pleading." Respondents did not appear at the December 5 hearing.

Judge Robinson signed a second remand order 2 days later; the order reflects a filing date of December 11, 2006. It recited:

"Respondent asserts that this matter 'became removable when the Petitioners failed to apply the 30 day mandatory stay on the proceedings of the state court actions pending the provision of the removal statutes upon the remand of an action back to state court jurisdiction.' In all other material respects, the basis for the relief sought remains the same as in the first Notice of Removal.

". . . [T]he Court concludes that respondent lacked an objectively reasonable basis for seeking removal. . . . Moreover, the Court stresses that this is the second attempt to remove these quo warrantor proceedings, the first attempt resulting in remand as well as an award of attorney's fees . . . . [The State] was once again required to devote time and resources responding to a facially meritless motion. As such, the Court will require ...

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