The Standard for a Preliminary Injunction Is Well Known

Standard for Preliminary Injunction

The standard for a preliminary injunction is well known. A court will grant a preliminary injunction if a plaintiff shows "(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest." Kikumura v. Hurley, 242 F.3d 950 at 955 (10th Cir. 2001).

Preliminary injunction does not alter the status quo

The plaintiff’s requested preliminary injunction does not alter the status quo.Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001)(status quo is situation existing at time litigation is instigated.)Valdez v. Applegate, 616 F.2d 570 (10th Cir. 1980) and Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149 (10th Cir. 2001) support the position that the status quo in this case should be viewed as the time when the plaintiff was exercising his First Amendment freedoms in legal advocacy before STANTON HAZLETT began the enforcement action of a disciplinary proceeding against him. Like Dominion Video, it was STANTON HAZLETT’s government enforcement action which changed the status quo and became the impetus for this litigation. SeeDominion Video, 269 F.3d at 1155. Hence, the last uncontested status between the parties was the plaintiffs' uninhibited exercise of his First Amendment protected advocacy as a licensed attorney on behalf of his clients. It is STANTON HAZLETT 's attempt to disrupt that status that the plaintiff seeks to enjoin.

(1) A substantial likelihood of success on the merits of the case

(2) The plaintiff will suffer irreparable injury if the preliminary injunction is denied

The plaintiff has suffered irreparable harm in family relationships, reputation, creditworthiness and in his future career prospects from the actions of STANTON HAZLETT. The plaintiff is in certain danger of further irreparable harm from the actions of STANTON HAZLETT. The complaint and the present memorandum for temporary restraint and preliminary injunction proffers evidence sufficient to find that STANTON HAZLETT knew of the bad faith purpose and intentionally participated, using his office to deter the plaintiff from adequately representing James Bolden and David Price to protect the extra legal enterprises of State of Kansas officials.

Chief among the devices used by STANTON HAZLETT has been the repeated threat of prosecution or sanction in order to deter the plaintiff from zealous advocacy exposing state wrong doing and to intimidate and harass the plaintiff into submitting to STANTON HAZLETT’s false jurisdiction to prosecute against the constitution pretend KRPC violations that are in actuality acts required by the KRPC, through the acceptance of probation or other form of voluntary surrender of the plaintiff’s duties required by his oath as a licensed Kansas attorney. The threats of prosecution were injurious in themselves: “For '(t)he threat of sanctions may deter * * * almost as potently as the actual application of sanctions. * * *'” NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405.

STANTON HAZLETT’s bad faith prosecution’s goal is to chill the plaintiff’s freedom of speech and to prevent him from speaking out on behalf of the African American James Bolden and David Price who is of American Indian descent in violation of the plaintiff’s rights under 42 U.S.C. § 1981, explicitly charged in the plaintiff’s complaint through 42 U.S.C.§ 1983 and 42 U.S.C.§ 1985(2) implicitly stated in the plaintiff’s 42 U.S.C.§ 1983 counts. STANTON HAZLETT’s actions threaten the certain chilling of the plaintiff’s First Amendment rights:

“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See NAACP v. Button, supra, 371 U.S., at 432 433, 83 S.Ct., at 337—338; cf. Baggett v. Bullitt, supra, 377 U.S., at 378—379, 84 S.Ct., at 1326; Bush v. Orleans School Board, D.C., 194 F.Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, 367 U.S. 907, 81 S.Ct. 1926, 6 L.Ed.2d 1250; Gremillion v. United States, 368 U.S. 11, 82 S.Ct. 119, 7 L.Ed.2d 75.”

Dombrowski v. Pfister, 380 U.S. 479 at 487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). The plan of the defendants and STANTON HAZLETT in their repeated threatening of the plaintiff and in manufacturing two ethics complaints and conspiring to unsuccessfully paint the defendant complaining witnesses SHERRI PRICE and BRENDEN LONG along with the Kansas Corporation Commissioner Brian Moline with prosecutorial immunity has taken them squarely into the conduct described in Younger as outside of whatever excusable irreparable harm may result from a single good faith prosecution:

“But Younger acknowledged the continued vitality of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), by stating that federal courts should afford injunctive relief to a plaintiff who successfully establishes "the kind of irreparable injury, above and beyond that associated with a single prosecution brought in good faith, that had always been considered sufficient to justify federal intervention." Younger, 401 U.S. at 48, 91 S.Ct. at 752; see id. at 53, 91 S.Ct. at 755. The Court's opinions construing Younger have continued to recognize that a showing of "bad faith, harassment or other exceptional circumstances" may justify federal intervention. Trainor v. Hernandez, 431 U.S. 434, 446, 97 S.Ct. 1911, 1919, 52 L.Ed.2d 486 (1977); Huffman, 420 U.S. at 611-12, 95 S.Ct. at 1212.”

Bishop v. State Bar of Texas, 736 F.2d 292 at 293 (C.A.5 (Tex.), 1984). The Dombrowski principle incorporated in Younger is appropriately applied to STANTON HAZLETT’s prosecution of the plaintiff because both forms of Younger bad faith prosecution’s are present in STANTON HAZLETT’s conduct; 1) the original goal of the defendants and STANTON HAZLETT was to punish and deter the plaintiff from exercising his right to advocate on behalf of James Bolden and David Price and 2) STANTON HAZLETT’s actions have been to harass and intimidation the plaintiff:

“We have applied Younger's exception for "bad faith prosecutions" in two major circumstances: first, when a state commences a prosecution or proceeding to retaliate for or to deter constitutionally protected conduct, e.g., Smith v. Hightower, 693 F.2d 359 (5th Cir.1982); Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979); and second, when the prosecution or proceeding is taken in bad faith or for the purpose to harass. E.g., Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.1981) (per curiam); Shaw v. Garrison, 467 F.2d 113, 119-21 (5th Cir.) cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972). 1 In either case, irreparable injury under Younger is established by a sufficient showing of retaliatory or bad faith prosecution, and a federal injunction may issue. See Wilson, 593 F.2d at 1382-83 (retaliatory prosecution); Shaw, 467 F.2d at 120 (bad faith prosecution); cf. Smith, 693 F.2d at 366-67 (retaliation must be a "major motivating factor and [have] played a prominent role in the decision to prosecute").”

Bishop v. State Bar of Texas, 736 F.2d 292 at 293 (C.A.5 (Tex.), 1984). The bad faith prosecution of the plaintiff by STANTON HAZLETT is irreparable and untransmuted by the possibility of Supreme Court review. ( The Kansas Supreme Court refused to review the plaintiff’s petition on behalf of David Price even though a Kansas statute applying to the appellate court ruling made the Supreme Court review by right. The Kansas Supreme Court similarly declined to review David Price’s pro se petition in a separate matter and the Kansas Supreme Court Clerk’s office constructively prevented the hearing of the plaintiff’s brief for James Bolden so the safe guard of Supreme Court review of STANTON HAZLETT’s is a mere chimera ). Even presuming the actual possibility of constitutional recourse from a Kansas disciplinary proceeding , the plaintiffs rights will have been irreparably harmed:

“In applying Younger to attorney disciplinary proceedings, the Middlesex Court expressly noted that a showing of bad faith or harassment might justify federal injunctive relief. 457 U.S. at 436, 102 S.Ct. at 2524. Although Texas disciplinary proceedings are capable of deciding constitutional challenges to specific procedures, recourse in those proceedings is not a sufficient avenue to remedy the constitutional injury done by bad faith proceedings themselves. The right under Shaw is to be free of bad faith charges and proceedings, not to endure them until their speciousness is eventually recognized. Shaw, 467 F.2d at 122 n. 11. See Younger, 401 U.S. at 46, 91 S.Ct. at 751; id. at 56, 91 S.Ct. at 757 (Stewart, J. concurring); Wilson, 593 F.2d at 1382-83. Thus, Younger forbade the district court from interfering with Bishop's disciplinary proceedings on the ground of specific constitutional flaws in the procedure followed in the state system. It did not foreclose injunctive relief based on Bishop's allegations of bad faith.”

Bishop v. State Bar of Texas, 736 F.2d 292 at 294 (C.A.5 (Tex.), 1984).

“We conclude that on the allegations of the complaint, if true, abstention and the denial of injunctive relief may well result in the denial of any effective safeguards against the loss of protected freedoms of expression, and cannot be justified.”

Dombrowski v. Pfister, 380 U.S. 479 at 492, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)

(3) The threatened injury to the plaintiff outweighs the injury to STANTON HAZLETT under the preliminary injunction

The plaintiff’s requested preliminary injunction to restrain the disciplinary administrator from the suspect action of prosecuting him for the representation of James Bolden and David Price is not outweighed by the state’s interest in prosecuting violators of the Kansas Rules of Professional Conduct.

“We find the other conditions for granting a preliminary injunction present as well. Because "a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA," Kikumura, 242 F.3d at 963, we conclude the irreparable harm requirement for a preliminary injunction is satisfied. On the balance of the harms and adversity to the public interest, we recognize the importance of enforcement of criminal laws, including the CSA. New Motor Vehicle Board v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (in a case involving enforcement of the California Automobile Franchise Act, noting a state "suffers a form of irreparable injury" any time it "is enjoined by a court from effectuating statutes enacted by representatives of its people"). Nevertheless, as RFRA a statute enacted by representatives of the people to protect religious freedom acknowledges, harm ensues from the denial of free exercise and the public has a significant interest in unburdened legitimate religious expression. Given the critical evidence in support of the Government's alleged compelling interests was "in equipoise" and "virtually balanced," we agree with the district court that UDV has demonstrated the balance of harms and public interest tip in their favor.”

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft at pg. 14-15 (10th Cir., 2003).

The Kansas Supreme Court has recognized the importance of weighing the grant of immunity under KS Sup. Ct. Rule 223 with the harm to the public policy rule behind the complaint when the immunity is being used to avoid performing a duty to that public trust:

"Our judicial system cannot survive without the public's trust in the system and the belief that justice will prevail. The public is asked to place its trust in a system dominated by attorneys. To a great extent, that trust is measured by how we, the bench and bar, implement and enforce the disciplinary rules. The purpose of Supreme Court Rule 223 is to encourage the members of the public to file complaints against attorneys who have violated the rules of ethics. It is rationally related to the objective of effectively regulating the conduct of the bar, which in turn protects the public's interest." Jarvis, 250 Kan. at 652-53, 830 P.2d 23.

Granting Harris immunity in this situation will work against the public policy behind Rule 223 of increasing public confidence in the bench and bar and providing effective regulation of attorney conduct. The public will be discouraged from filing disciplinary [261 Kan. 1013] complaints, if filing will grant the attorney immunity from performing any agreed-to resolution of the complaint.”

Gerhardt v. Harris, 934 P.2d 976 at 981, 261 Kan. 1007 (Kan., 1997). While the facts of the current complaint strongly support the conclusion the Kansas Supreme Court would not follow its own precedent or otherwise afford Due Process to a representative of James Bolden (the Supreme Court clerk’s own attorney assisted the other defendants in constructively refusing to hear James Bolden’s appeal) or David Price ( the plaintiff’s appeal by right of the the defendants’ decision on In the matter of Baby C to the Kansas Supreme Court was declined without explanation or signature) honoring their law with impartiality would require STANTON HAZLETT’s bad faith prosecution utilizing the Kansas Rules of Professional Conduct to be outweighed by the State’s interest in fostering the public trust in the system and the belief that justice will prevail.

(4) The injunction is not adverse to the public interest

No public interest was adversely impacted by the plaintiff raising as an issue the very real and now impossible to reasonably refute misconduct in fraudulently altered documents used to take a baby from his natural father without consent and the fraudulent alteration of court records to conceal the illegal taking. No later civil or probate court action could change the intentional unlawful act of taking the child through deception and its completion of the elements of conduct specified in K.S.A. 21-3420. The plaintiff reported the misconduct in both trial and appellate courts and to another authority, the chief administrative judge of Shawnee County ( the defendant HON. RICHARD D. ANDERSON) as required under KRPC 8.3. The notes to KRPC 8.3 state that the misconduct should be reported to “the bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate in the circumstances. Similar considerations apply to the reporting of judicial misconduct.” ( In actuality, STANTON HAZLETT is prosecuting the plaintiff on a complaint that the wrong doing was not reported when each defendant clearly knows it was.)

The public policy cannot be claimed by any defendant to be violated through the plaintiff’s injunction, the public policy in Kansas is to prohibit taking children through deception for the purpose of interfering with any governmental function.