State ex rel. Stephan v. O'Keefe, s. 56548

• Decision Date: 13 July 1984
• Docket Number: 56711,Nos. 56548,s. 56548
• Citation: 235 Kan. 1022,686 P.2d 171
• Parties: STATE of Kansas, ex rel., Robert T. STEPHAN, Attorney General, et al., Petitioners, v. The Honorable Maurice P. O'KEEFE, Jr., District Judge, First Judicial District, Respondent. In re Application of Michael A. BARBARA, Secretary of Corrections, for an Order Staying Certain Court Proceedings in Leavenworth District Court.
• Court: Kansas Supreme Court

Page 171

686 P.2d 171

235 Kan. 1022

STATE of Kansas, ex rel., Robert T. STEPHAN, Attorney General, et al., Petitioners, v. The Honorable Maurice P. O'KEEFE, Jr., District Judge, First

Judicial District, Respondent.

In re Application of Michael A. BARBARA, Secretary of

Corrections, for an Order Staying Certain Court

Proceedings in Leavenworth District Court.

Nos. 56548, 56711.

Supreme Court of Kansas.

July 13, 1984.

Syllabus by the Court

1. The Supreme Court has general administrative authority over all courts in this state. Kan. Const. art. 3, § 1. The issue raised in this action directly affects the operation of Kansas courts and is of statewide importance. Where a petition for mandamus presents an issue of statewide importance and concern, the court may exercise its original jurisdiction in mandamus to settle the issues raised.

2. This court has constitutional, statutory and inherent jurisdiction to inquire by what authority a district judge allows one not approved by the Kansas Supreme Court to practice law in this state and to make appropriate orders relating thereto. A proceeding in the nature of mandamus is appropriate for that purpose.

3. The right to a day in court means the right to be afforded an opportunity to be heard. The right to be heard does not insure an indigent or indigent prisoner litigant the right to an attorney to prosecute or defend his civil cause.

4. The United States Supreme Court decisions guaranteeing prisoners the right to seek assistance and advice on legal matters from other inmates in certain matters do not sanction representation during litigation by fellow prisoners who are lay persons and are not parties. In all courts of the United States, the parties may plead and conduct their own cases personally or by counsel.

5. In Kansas a state prisoner is allowed to assist other prisoners' preparation of legal matters. The Department of Corrections has adopted a regulation which allows an inmate to give, but not to charge for, assistance in legal matters to another inmate when such assistance is requested by another inmate. K.A.R.1983 Supp. 44-12-702.

6. Statutes and rules clearly identify all instances in which a person may appear in a legal capacity in Kansas courts, i.e., as an attorney regularly admitted to the Kansas bar, as an attorney with a temporary permit, as a legal intern under the supervision of a licensed attorney, on motion as an attorney admitted to practice in another state, and as a nonlicensed person acting on his or her own behalf. There is nothing in the statutes or the court rules which even infers that there might be other circumstances in which a nonlicensed person may act in a legal capacity in a Kansas court.

7. Counsel, as referred to in the Sixth Amendment to the Constitution of the United States, does not include a lay person; rather, counsel refers to a person authorized to practice law.

Brenda Hoyt, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief for petitioners.

Maurice P. O'Keefe, Jr., pro se.

Lisa Nathanson, Topeka, was on the amicus curiae brief for Legal Services for Prisoners, Inc.

Michael Kaye, Overland Park, was on the amici curiae brief for Kansas Civil Liberties Union; Elizabeth R. Alexander, Washington, D.C., was on the amici curiae brief for the National Prison Project of the American Civil Liberties Union.

LOCKETT, Justice:

This is an original action in mandamus, brought by Attorney General Robert T. Stephan, Secretary of Corrections Michael Barbara, and other Department of Corrections officials (petitioners). The action was brought against Judge Maurice P. O'Keefe, Jr., and various inmates at the Kansas State Penitentiary. All respondents except Judge O'Keefe have now been dismissed from this action. The petitioners request the Supreme Court issue an order prohibiting Judge O'Keefe from appointing inmates at the Kansas State Penitentiary (KSP) to represent other inmates at KSP in district court proceedings. An order was issued by the Supreme Court on April 5, 1984, staying proceedings in the district court until further order of the Supreme Court.

Judge Maurice P. O'Keefe, Jr. is a district judge in the First Judicial District of Kansas, the district in which KSP is located. Judge O'Keefe has appointed KSP inmates Arthur Murley, Jerry Wayne Smith, and Michael Pyle, none of whom are licensed to practice law in Kansas, to appear on behalf of other KSP inmates as legal counsel in his court. The inmates as plaintiffs requested Murley, Smith, and Pyle be appointed as legal counsel to represent them in civil actions filed by the inmates/plaintiffs in the district court against prison officials. Four civil cases involving inmate representation are still pending in the district court.

Petitioners first assert an action in mandamus is the proper method to challenge the district court's act of appointing Murley, Smith, and Pyle to act as attorneys.

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state, directed to some inferior court, tribunal, board, or to some corporation or person either compelling or enjoining the performance of a particular act. The act which the writ directs must result from the official station of the party or from operation of law. Mandamus is a remedy at law to which the rules of civil procedure relating to actions at law are applicable. K.S.A. 60-802.

Mandamus is an extraordinary remedy which is available only in cases in which the usual form of procedure is powerless to afford relief. It is not a common means of obtaining redress, but is available only in rare cases, and as a last resort, for causes which are really extraordinary. The writ of mandamus seeks to enjoin an individual or to enforce the personal obligation of the individual to whom it is addressed. It rests upon the averred and assumed fact that the respondent is not performing or has neglected or refused to perform an act or duty, the performance of which the petitioner is owed as a clear right. The writ does not reach the office nor can it be directed to the office. It acts directly on the person of the officer or other respondent, compelling him to perform a plain duty, or enjoining him from performing a wrongful act. It is, therefore, in substance, a personal action against the respondent and not one in rem against the office. The writ will not ordinarily issue unless there has been a wrongful performance or actual default of duty.

The Supreme Court of Kansas has been granted original jurisdiction in proceedings in mandamus by the Kansas Constitution, art. 3, § 3. This jurisdiction is plenary and may be exercised to control the actions of inferior courts over which the Supreme Court has superintendent authority. In addition to constitutional authority, the Kansas Supreme Court is guided by the Kansas statutes. K.S.A. 60-801 provides:

"Mandamus 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."

Owing to the summary and drastic character of the writ of mandamus, this court has properly erected many safeguards. The writ of mandamus is discretionary with the court and will not issue as a matter of right. Unless a respondent's legal duty is clear, the writ should not issue. Huser v. Duck Creek Watershed Dist. No. 59, 234 Kan. 1, 668 P.2d 172 (1983).

The only acts of public functionaries which the court ever attempts to control by either injunction or mandamus are such acts which are by their nature strictly ministerial. A ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. Arney v. Director, Kansas State Penitentiary, 234 Kan. 257, 671 P.2d 559 (1983).

A trial court's discretion cannot be controlled by mandamus. Where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked. Wesley Medical Center v. Clark, 234 Kan. 13, 669 P.2d 209 (1983).

The Supreme Court has general administrative authority over all courts in this state. Kan. Const. art. 3, § 1. The issue raised in this action directly affects the operation of Kansas courts and is of statewide importance. Where a petition for mandamus presents an issue of statewide importance and concern, the court may exercise its original jurisdiction in mandamus to settle the issues raised. Wesley Medical Center v. Clark, 234 Kan. 13, 669 P.2d 209. This is a proper issue for the court to accept.

When does an individual have a right to be represented by an attorney? An individual whose life or liberty is threatened by a criminal charge, felony, or misdemeanor has a constitutional right to be represented by an attorney. If the individual is indigent, the prosecuting sovereign, i.e., city, state or federal government, must insure that an attorney is appointed to represent the individual whose life or liberty is jeopardized. When an individual's property or claim is at stake in a civil action, that individual is also entitled to have an attorney represent his cause--but only if he can afford to hire one or there is a special law or statute that provides for the appointment of an attorney to represent an indigent claimant or defendant.

In 1963, the United States Supreme Court required the appointment of an attorney for an indigent criminal defendant charged with a felony. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963). That court tied the requirement for appointment of counsel for the indigent criminal defendant...