TOPEKA — When former Kansas Attorney General Phill Kline faced potential indefinite suspension of his law license before the Kansas Supreme Court, Kline urged two of its members to recuse themselves and suggested three more should do the same.
The five justices recused themselves, and five judges replaced them to hear Kline’s case. That Supreme Court — consisting of two justices and five replacements — unanimously ruled to indefinitely suspend Kline’s law license in October 2013.
Kline challenged the court’s ruling based on the makeup of that court, as well as alleged constitutional violations he said caused the Kansas Supreme Court to wrongfully suspend his law license.
In its answer filed earlier this month, the Supreme Court essentially said Kline couldn’t have it both ways. When Kline sought five recusals and got them, he can’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 and replacement justices, the clerk of the Kansas appellate courts and the Kansas Disciplinary administrator.
“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.
The 10th U.S. Circuit Court of Appeals in Denver will decide whether to uphold the Kansas Supreme Court’s disciplinary action against Kline or overturn it.
Kline is seeking to orally argue the case before the federal court of appeals, but the Supreme Court isn’t. So far, the case isn’t scheduled to appear before the appellate court through May, according to that court’s arguments calendar.
Kline was elected Kansas’ attorney general in 2002. He lost re-election in 2006 to Johnson County District Attorney Paul Morrison, then was appointed to fill Morrison’s vacancy. In both positions, Kline was known for his investigations of late-term abortion provider George Tiller in Wichita and Planned Parenthood in Johnson County.
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 on 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.
His appeal stems from the Nov. 14 ruling by Chief U.S. District Judge Greg Kays, of the western district of Missouri. Kline filed the federal lawsuit Oct. 18, 2015, listing 10 points while seeking declaratory and injunctive relief.
In the lawsuit originally filed in U.S. District Court in Kansas, then moved to a federal court in Missouri, Kline sought reinstatement of his law license.
In a 13-page ruling filed Nov. 14, Kays wrote that a judge in a lower federal court lacks jurisdiction to rule on a Kansas Supreme Court decision. Kays determined legal doctrine blocks a lower federal court from exercising jurisdiction over “final state court judgments.”
“These arguments are without merit,” Kays said of Kline’s claims. “In fact, they are arguably frivolous because they are foreclosed by binding precedent.”
Kline is asking the federal appeals court to reverse Kays’ decision and grant a summary judgment on two of Kline’s claims for relief:
That an “unlawfully constituted” Kansas Supreme Court suspended his law license, constituting a deprivation of property — his license — without due process, a violation of the 14th Amendment.
That U.S. district courts can rule on appeals in “cases brought by state-court losers,” Kline said, citing a 10th U.S. Circuit Court of Appeals case and a U.S. Supreme Court case.
Kline said Kays erred in his ruling. Federal district courts can enjoin a state court from enforcing a void judgment, Kline wrote.
Kline also sought to have the U.S. Supreme Court hear his disciplinary case, but it denied Kline’s petition April 28, 2014.
On Wednesday, Kline filed an answer to the Supreme Court’s response, contesting which part of the Kansas Constitution and which Kansas statute allow appointment of lower court judges to fill vacancies of Kansas Supreme Court justices.