IN THE DISTRICT COURT OF CRAWFORD COUNTY, KANSAS

JULIE STOVER-KING, )
)
Petitioner, )
)
v. ) Case No. 2019-CV-000043P
HONORABLE RICHARD SMITH, )
)
Respondent. )
)

RESPONSE TO PETITION FOR MANDAMUS

OR IN THE ALTERNATIVE
MOTION TO DISMISS

Respondent Judge Richard Smith, Senior District Court Judge, submits this Response in

opposition, or in the alternative Motion to Dismiss pursuant to K.S.A. 60-212(b)(1), (b)(4), (b)(5)

and (b)(6) to Petitioner Julie Stover-King's Petition for Writ in the Nature of Mandamus.

Petitioner alleges that Respondent Judge Smith is assigned to hear a mortgage foreclosure

against her, Wells Fargo vs. Julie Brunskill, et al., 2013CVC32P. She alleges she filed an

affidavit for disqualification pursuant to K.S.A. 20-311d, which was reviewed by Senior Judge

Gunnar A. Sunby, who declined to require disqualification of Judge Smith. (Judge Sunby is also

assigned to hear the present mandamus case.) For grounds for recusal, Petitioner alleges that

Respondent is biased/prejudiced against her because he presided over a case involving her

husband, Kasey King, ultimately imposing filing restrictions against him. She also alleges

Respondent is biased/prejudiced because she filed a complaint against him with the Commission

on Judicial Qualifications. She asks this Court to "overturn the court's decision to hear this

case" and find that bias/prejudice exists.

 ARGUMENTS AND AUTHORITIES

1. Service of process was inadequate.

The return of service in this matter shows it was personally served by the sheriff on Judge

Smith. ROA #4. This suit, a mandamus action, is in the nature of an official capacity suit and

must be served on the Attorney General pursuant to K.S.A. 60-304(d)(5). See Copeland v.

Robinson, 25 Kan. App. 2d 717 (1998).

2. Mandamus in district court is unavailable.

Generally speaking, "[mJandamus is a proceeding to compel some inferior court, tribunal,

board, or some corporation or person to perform a specified duty, which duty results from the

office, trust, or official station of the party to whom the order is directed, or from operation of

law." K. S.A. 60-801. But mandamus cannot require performance of a discretionary act or

enforce a right that is in dispute. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 833

(2005). Instead, mandamus can compel only "the performance of a clearly defmed duty." 278

Kan. at 833. Additionally, the burden of showing the right to mandamus relief is on the

petitioner. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597,620,244 P.3d 642 (2010).

Mandamus would not normally be an appropriate tool to review ajudge's determination of a

K.S.A. 20-311 d affidavit because the judge must exercise discretion and judgment in doing so.

Petitioner cites Stephen v. Van Arsdale, 227 Kan. 676,682 (1980), which seems to allow

expanded use of mandamus for "guidance of state officers and official boards in the discharge of

their duties." She also cites Hulme v. Woleslagel, 208 Kan. 385 (1972), in which the Kansas

Supreme Court considered an original mandamus action alleging that K.S.A. 20-311d affidavit

stated grounds requiring recusal. Petitioner's action differs from Stephen and Hulme in that both

of those were original actions in the Kansas Supreme Court. Here, Petitioner requests this Court

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to overrule his prior ruling on the affidavit-she asks this court to overrule itself in another case.

This Court is without jurisdiction to do so. The general rule is that one district court judge is not

allowed to second guess or reverse another judge's rulings or to enjoin another judge. See e.g.,

Smith v. State, 264 Kan. 348, 355 (1998). This is sometimes referred to as the comity doctrine

or, in Kansas, the Schaeffer noninterference doctrine. See Schaeffer v. Schaeffer, 175 Kan. 629,

633 (1954). It is also a well-recognized doctrine in other jurisdictions. For instance in In re Tia,

# 12-00496 JMS, 2012 WL 3985736 (D. Haw. Sept. 10,2012), the court held that federal district

court judges lack authority to overrule decisions of other federal district court judges and that a

writ of mandamus may be issued only to a district court by an appellate court to direct the

inferior court to act in some manner. In Hale v. Lefkow, 239 F. Supp. 2d 842,845 (C.D. Ill.

2003), the court noted that allowing injunctive relief against federal judges would permit a

'horizontal appeal' or even a 'reverse review' of a ruling ofthe court of appeals by a district

court, which would violate the most basic tenants of the judicial system. In Edwards v.

Wilkinson, 233 F. Supp. 2d 34,37 (D.D.C. 2002), the court said, "[a]ppealing to a higher court

for relief is the only judicial procedure available to a litigant who seeks to challenge the legality

of decisions made by a judge in her judicial capacity." Just as one district court judge may not

overrule another, this Court should not be called upon in the present case to overrule itself in a

different case.

Given that K.S.A. 20-311d has been amended several times since 1972, it's not clear if

Hulme is still good law, but if it is-if a mandamus action may be used to require recusal-that

action must be brought in the Kansas Supreme Court. Even if Hulme is not good law, Plaintiff is

without a remedy. K.S.A. 20-311d determinations are frequently raised in direct appeals from

final judgments, so Petitioner is not without a remedy.

3
 To the extent that the Court might reach the merits of Petitioner's K.S.A. 20-311d

arguments, Judge Sunby's previous order correctly reviews the law on recusal, finding that none

ofthe grounds stated demonstrate that Judge Smith is prejudiced against her. Bias/prejudice is

not presumed from adverse rulings. Petitioner alleges that Judge Sunby erred by not specifically

addressing the filing restrictions entered against her husband. The Order in fact does note her

claims of bias due to prior litigation with her husband. (Order, Exhibit B to Petition, p. 6.)

Wherefore Respondent asks that Petitioner's mandamus action be denied and/or

dismissed.

Respectfully Submitted,

OFFICE OF ATTORNEY GENERAL

DEREK SCHMIDT

/s/ Stephen Phillips

Stephen Phillips, No. 14130
Assistant Attorney General
120 SW 10th Avenue, 2nd Floor
Topeka, Kansas 66612-1597
Telephone: 785-368-8421
FAX: 785-291-3767
Email: steve.phillips@ag.ks.gov
Attorney for Respondent Smith

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 CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of April, 2019, I electronically filed the foregoing
with the Clerk of the Crawford County District Court e-filing system, with a copy sent via e-mail
to:

none

I hereby certify that on the same date a copy of the above and foregoing was served by
depositing the same in the United States Mail, first class postage prepaid addressed to:

Julie S. Stover-King
303 S. Jefferson St.
Frotenac, KS 66763
Prose

Is/Stephen Phillips
Stephen Phillips
Assistant Attorney General

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 IN THE DISTRICT COURT OF CRAWFORD COUNTY, KANSAS

JULIE STOVER-KING, )
)
Petitioner, )
)
v. ) Case No. 2019-CV-000043P
HONORABLE RICHARD SMITH, )
)
Respondent. )
)

ENTRY OF APPEARANCE PRESERVING ALL RIGHTS AND DEFENSES

INCLUDING OBJECTIONS TO SERVICE OF PROCESS AND
DEFENSES OF PERSONAL JURISDICTION

COMES NOW, Stephen Phillips, Assistant Attorney General, and hereby, enters his

appearance on behalf of Respondent, Hon. Richard Smith, preserving all rights and defenses

including objections to service of process and defenses of personal jurisdiction.

Respectfully Submitted,

OFFICE OF ATTORNEY GENERAL

DEREK SCHMIDT

Isl Stephen Phillips

Stephen Phillips, No. 14130
Assistant Attorney General
120 SW 10th Avenue, 2nd Floor
Topeka, Kansas 66612-1597
Telephone: 785-368-8421
FAX: 785-291-3767
Email: steve.phillips@ag.ks.gov
Attorney for Respondent Smith
 CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of April, 2019, I electronically filed the
foregoing with the Clerk of the Crawford County District Court e-filing system, with a copy sent
via e-mail to:

none

I hereby certify that on the same date a copy of the above and foregoing was served by
depositing the same in the United States Mail, first class postage prepaid addressed to:

Julie S. Stover-King
303 S. Jefferson St.
Frotenac, KS 66763
Pro se

Is/Stephen Phillips
Stephen Phillips
Assistant Attorney General