TOPEKA, Kan. (Legal Newsline) – On Monday, former Kansas Attorney General Phill Kline filed a federal lawsuit against the Kansas Supreme Court, Kansas Disciplinary Administrator Stan Hazlett, and the replacement judges serving on the Supreme Court panel that indefinitely suspended him in October 2013.
Kline filed his lawsuit on the basis that his suspension is void for a number of reasons, primarily because the composition of the Supreme Court panel violated the Kansas Constitution.
When Kline filed the appeal of his initial disbarment in May 2012, he also filed a motion for the recusal of two Supreme Court justices based on prior behavior that was allegedly biased against Kline. In addition to the two justices whose recusals were sought, three more recused due to conflicts of interest.
The unprecedented recusal of five justices left only two remaining Supreme Court justices to hear the case against Kline. The recused were replaced with temporary appointments of lower court judges, who unanimously ruled to indefinitely suspend Kline rather than to disbar him.
However, Kline’s counsel argues that the Kansas Constitution sets up a Supreme Court in which cases must be decided based upon the votes of four Supreme Court justices – only two sat on the court that decided to suspend Kline.
“This is an airtight argument – this was an invalid court. It literally was an illegitimate tribunal that had no power to decide not only Phill Kline’s case, but any case. You can’t call yourself the Supreme Court but only have two justices,” Condit said.
“The suspension of [Kline’s] law license is void. It never happened.”
Kline also alleges multiple other procedural and constitutional violations in the case’s iniital handling. According to the complaint, the ethical panel that had first judged Kline was composed of two out of three attorneys who had contributed money to campaigns of Kline’s political opponents.
“The complaint against Kline was just endless levels of garbage,” Condit said. “It was an exercise of cherry picking, and nitpicking, of anything that he or his staff said or wrote over an eight-year period, trying to find any sort of inconsistency and calling it a complete lie.”
One allegation that Condit points to is a disciplinary action accusing Kline of incorrectly using the words “from” and “of” when requesting records.
“If this was the standard applied to all lawyers, there would be no litigators, because they would be disbarred already,” Condit said.
The ethical complaint stems from previous controversies surrounding Kline, particularly his involvement in prosecutions against Planned Parenthood and abortion providers.
In 2003, Kline was the first state prosecutor to develop cases against Planned Parenthood and George Tiller, the late-term abortionist accused of illegally aborting 19 late-term fetuses in 2003. Tiller was found not guilty by a Kansas jury on March 27, 2009, and shot on May 31 of the same year.
Kline received such criticism from media and political opponents for pressing these criminal charges that he was driven from both his office as Kansas attorney general, and later, as District Attorney of Johnson County, his counsel said.
After leaving both offices, Kline was charged with misconduct in 16 different situations. These accusations, which Kline eventually appealed down to total six, eventually led to his suspension.
It was not until after the case was processed that Kline’s counsel turned to the Kansas Constitution to argue against the representative judges.
According to Kline’s counsel, resolving the issue is not something that can happen anytime soon.
“We need to wait until there are four justices who can hear Phill’s case. That may mean waiting for justices to retire, and for new justices to sit in on the court,” Condit said.
Despite the waiting period, Kline’s counsel feels confident that the suspension will be overturned.
“This is just unambiguous from the Kansas Constitution,” Condit said. “It’s going to have to take judicial bending of the Kansas Constitution to defeat our argument.”