Appellate Decisions
| Publication year | 2009 |
| Pages | 31 |
Supreme Court
Civil
CERTIFIED QUESTIONS AND JUDICIAL COMMENT ON POLITICAL ISSUES
KANSAS JUDICIAL REVIEW V. STOUT
CERTIFIED QUESTIONS OF LAW FROM THE U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
NO. 100,170 — DECEMBER 5, 2008
FACTS: Plaintiffs, Kansas Judicial Review, a political action committee, Robb Rumsey, previously a judicial candidate and now a state district court judge, and Charles Hart, a state district court judge, filed an action in the U.S. District Court for the District of Kansas against members of the Kansas Commission on Judicial Qualifications and the Office of the Disciplinary Administrator seeking injunctive and declaratory relief under 42 U.S.C. § 1983 (2000). 'The plaintiffs claimed provisions of the Kansas Code of Judicial Conduct violated their rights to freedom of speech and freedom of assembly under the First Amendment to the U.S. Constitution. The federal district court granted a preliminary injunction against enforcement of the judicial canons in question. The defendants appealed. The U.S. Court of Appeals for the Tenth Circuit determined that the plaintiffs' First Amendment claims "rest[ed] on sufficiently novel and determinative questions of state law" regarding the canons and that there were "important state policy interests at play" regarding the regulation of judicial conduct and the judicial process. The Tenth Circuit decided not to reach the merits of the plaintiffs' claims before the Kansas Supreme Court had an opportunity to resolve the underlying questions of state law.
CERTIFIED QUESTIONS: (1) Does a judicial candidate violate Canon 5A(3)(d)(I) and (ii) by answering a questionnaire asking for his or her views on disputed legal and political issues? (2) Does a judicial candidate solicit "publicly stated support" in violation of Canon 5C by personally collecting signatures for his or her nomination petition? (3) Does the definition of "the faithful and impartial performance of the duties of the office" in Canon 5A(3)(d)(i) include all conduct relevant to the candidate's performance in office? (4) Is the definition of "appear to commit" in Canon 5A(3)(d)(ii) limited to an objective appearance of a candidate's intent to commit himself or herself? (5) Does the definition of "publicly stated support" in Canon 5C(2) include endorsements of a candidate?
HELD: Court held under the judicial cannons, announcing a judicial candidate's legal or political viewpoint is not prohibited. But a candidate who identifies a case, controversy, or issue that is likely to come before him or her when on the bench and who proceeds to pledge or promise a particular result, or to commit to a particular resolution of that case, controversy, or issue, engages in behavior inherently inconsistent with the faithful and impartial performance of the duties of the judicial office. Court also held judges and candidates for judicial office may choose to answer issue-related questionnaires (though they are not in any way required to do so) to the extent that the questionnaires call for the candidate's personal views on disputed legal or political issues. Canons 5A(3)(d)(I) and (ii) of the Kansas Code of Judicial Conduct do prohibit a judicial candidate from answering issue-related questions, however, when giving responses would bind the candidate as a judge to a resolution of a particular case, controversy, or issue within a particular controversy. In answering any questionnaire, it is advisable that a candidate who makes a public statement should emphasize the candidate's duty to uphold the law regardless of his or her personal views and to remain ever mindful of the impartiality that is essential to the judicial office. Court held that by personally asking someone to sign a nomination petition, a judicial candidate is personally soliciting publicly stated support in violation of Canon 5C(2) of the Kansas Code of Judicial Conduct. Court held that because Canon 5C(2) —— the solicitations clause —— explicitly prohibits judges and judicial candidates from personally soliciting publicly stated support, the clause necessarily prohibits judicial candidates from personally soliciting endorsements. Such solicitations must be delegated to the candidate's campaign committee. Court held judges and judicial candidates are not permitted under the solicitations clause of Canon 5C(2) to personally and actively seek endorsements of their judicial candidacies. Judges and judicial candidates may respond, however, to requests regarding their viewpoints on disputed issues, as long as such responses do not otherwise violate the canons.
STATUTE: K.S.A. 60-3201
MANDAMUS AND MEDICAL RECORDS COMPREHENSIVE HEALTH OF PLANNED
PARENTHOOD OF KANSAS V. KLINE
ORIGINAL PROCEEDING IN MANDAMUS
PETITION FOR WRIT OF MANDAMUS GRANTED IN PART AND DENIED IN PART
NO. 98,747 — DECEMBER 5, 2008
FACTS: On Feb. 3, 2006, the Supreme Court issued its opinion in Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006), which arose out of Kline's issuance of inquisition subpoenas duces tecum. The Court balanced the patients' individual privacy interests against the societal necessity and compelling state interest in pursuing criminal investigations, outlining procedures to be followed for redaction of the records before the district court allowed them to be turned over to the attorney general. On May 23, 2006, District Judge Richard Anderson of Shawnee County, the judge overseeing the inquisition, issued his only written post-Alpha protective order concerning the patient records from the clinics. The order set forth the procedure to be followed to effect the safeguards outlined in Alpha, appointing a Topeka lawyer to assist the judge and act as special counsel for adult patients and as guardian ad litem for minor patients. Kline was defeated in the November 2006 election by Paul Morrison. However, a month later in December 2006, Kline was selected by the Republican precinct committee members to complete Morrison's term as Johnson County district attorney. Shortly before leaving office, Kline filed charges in Sedgwick County against Dr. George Tiller and assigned a special prosecutor in the case. The clinics filed a joint motion for a protective order with Anderson, seeking to ensure that the patient records produced in the inquisition would remain with Anderson and in the attorney general's office on Kline's exit from that office. Although Kline later testified that he directed Eric Rucker to transport the records from the attorney general's office to Johnson County in mid-December 2006, the actual physical movement of the records did not begin until the Friday before Morrison was sworn-in as attorney general, Jan. 5, 2007, and did not end until Kline had been in office as the Johnson County district attorney for several weeks. In the intervening time, the patient records were stored in more than one automobile; in Stephen Maxwell's residence; from Jan. 8, 2007, until mid-February 2007, in the dining room of an apartment of another investigator, Jared Reed; and then to Maxwell's house for sorting to distribute to various places. The distribution and return of these records has a long and tortured history over the next several months. Comprehensive Health of Planned Parenthood (CHPP) filed this mandamus action on June 6, 2007, asking this court to: (1) compel Kline to "comply with [the court's] directives" in Alpha, (2) compel Kline to "return any copies of petitioner's medical records" to the attorney general's office, (3) direct Kline to provide an accounting for those records, (4) issue an order to show cause why Kline should not be held in contempt of the mandate in Alpha, and (5) grant any other appropriate relief, including attorney fees. The Court appointed District Court Judge David King as a special master to conduct an evidentiary hearing and make factual findings.
ISSUES: (1) Mandamus and (2) medical records
HELD: Court held a writ of mandamus was an available relief and that CHPP and the attorney general had standing in the case. Court rejected Kline's arguments on ripeness and mootness and that the separation of powers doctrine did not impose an insurmountable obstacle. On the merits, the Court held that the person who holds the position of Johnson County district attorney may lawfully possess the results of a criminal investigation begun by the attorney general. An attorney general or a district attorney may use a private citizen to ferry results of a criminal investigation, in this case Williams and Reed, during the period between employment by the attorney general's office and employment by the district attorney's office. However, Court cautioned that to the extent Kline eventually seeks to admit in any criminal prosecution any of the records he and his subordinates and/or private citizens moved from one office to the other, his choices may have exposed that evidence to challenge. Court concluded that CHPP and the attorney general were not entitled to the primary relief they sought. The Court did not force Kline to disgorge "each and every copy" of the patient records Kline and his subordinates have made "and any and all other evidence Kline developed and obtained while he was acting as attorney general that he took with him to Johnson County." However, the Court ordered the following relief: "Kline shall produce and hand deliver to the Attorney General's office no later than 5 p.m. on Dec. 12, 2008, a full, complete, and understandable set of the patient records and any and all other materials gathered or generated by Kline and/or his subordinates in their abortion-related inquisition while Kline was Attorney General. Neither Kline nor any of his subordinates or lawyers may make any exceptions whatsoever for any reason or on any rationale to the foregoing...
To continue reading
Request your trial