TOPEKA — Following a federal court of appeals decision against him in early July, former Kansas Attorney General Phill Kline will appeal to the U.S. Supreme Court to seek to reclaim his indefinitely suspended Kansas law license, Kline’s lawyer said this week.
“We will be seeking review by the U.S. Supreme Court,” Thomas W. Condit, of Cincinnati, said Tuesday.
The 90-day deadline to file the Kline appeal is approximately Oct. 1, Condit said, but he expects the appeal to be filed with the U.S. Supreme Court in the second half of September.
This is the second time Kline has approached the U.S. Supreme Court to ask that court to overturn his suspension. But that court denied to hear Kline’s petition April 28, 2014.
During Kline’s yearslong attempts to regain his law license, he appealed the indefinite suspension of his license based on what he contends was the ruling by an invalid Kansas Supreme Court, which didn’t have the required four justices to decide his case. The Supreme Court has seven justices.
Disciplinary action against Kline began in 2010 and is linked to his actions as attorney general and as Johnson County’s district attorney.
When the Kansas Supreme Court ruled Oct. 18, 2013, to indefinitely suspend Kline’s license, it found “clear and convincing evidence” Kline acted unprofessionally in pursuing criminal charges against abortion providers.
The suspension order followed a weekslong disciplinary hearing in February and July 2011 before the state disciplinary administrator’s office. The hearing panel released a 185-page report in October 2011 finding Kline committed multiple violations of the Kansas Rules of Professional Conduct governing lawyers.
In the latest ruling against Kline, the 10th Circuit Court of Appeals on July 3 noted every federal appeals court has found Rooker-Feldman blocks an attorney from challenging the result of his or her state disciplinary hearing when it is heard in a lower federal court.
When Kline faces the U.S. Supreme Court, his arguments will be narrow, Condit said.
Kline will challenge whether an appropriately constituted Kansas Supreme Court heard his appeals in the original disciplinary phase.
The Kansas Constitution says at least four justices must decide a case. But in the Kline disciplinary case before the Kansas Supreme Court, five of the seven justices recused themselves from hearing the Kline case, leaving two justices and five replacement justices.
When the five justices were replaced with two appeals court judges and three district court judges — none of whom were justices — “it is a very compelling argument that this was not a valid court,” Condit said.
“If it’s not a valid court, then the judgment is void, meaning Phill Kline never lost his law license,” Condit said. “The federal constitutional claim here is that you can’t take somebody’s life, liberty or property — the Kline law license being property — without due process of law.”
Due process requires you have a “properly constituted tribunal. We don’t have that here,” Condit said. “We’ve got an unlawful (Kansas) Supreme Court.”
Kline had encouraged two members of the Kansas Supreme Court to recuse themselves from hearing his case and suggested three more do the same. The five did so.
That Kansas Supreme Court — consisting of two justices and five replacements — unanimously ruled to indefinitely suspend Kline’s law license in October 2013.
Then Kline challenged the court’s ruling based on the makeup of that court.
In answer, the Kansas Supreme Court essentially said Kline couldn’t have it both ways. When Kline sought five recusals and got them, he couldn’t challenge the makeup of the court that decided his case, the court said.
Kline’s claim about the court’s composition “is barred because even if the Kansas Supreme Court erred, Kline invited the error,” reads the response from the Kansas Supreme Court justices.
“Generally, a party who induces an erroneous ruling — an invited error — cannot use that error to have the judgment set aside,” the court’s response said, citing a 2005 10th U.S. Circuit Court of Appeals decision.
Kline is an assistant professor of law at the Liberty University School of Law in Lynchburg, Va., joining that faculty in 2009. Kline earned an undergraduate degree from Central Missouri State University and his law degree from the University of Kansas School of Law.