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Kline v. Biles

United States Court of Appeals, Tenth Circuit

July 3, 2017

PHILLIP D. KLINE, Plaintiff - Appellant,
v.
HONORABLE DANIEL BILES, HONORABLE NANCY L. MORITZ, HONORABLE HENRY W. GREEN, JR., HONORABLE KAREN M. ARNOLD-BURGER, HONORABLE EDWARD E. BOUKER, HONORABLE BRUCE T. GATTERMAN, HONORABLE MICHAEL J.MALONE, HONORABLE LAWTON R. NUSS, HONORABLE CAROL A. BEIER, HONORABLE MARLA J. LUCKERT, HONORABLE LEE A. JOHNSON, HONORABLE ERIC S. ROSEN, HONORABLE CALEB STEGALL, CAROL GREEN, AND STANTON A. HAZLETT, Defendants - Appellees,

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:15-CV-09335-DGK)

         Submitted on the briefs:[*]

          Richard J. Peckham, Attorney at Law, Andover, Kansas; Thomas W. Condit, Attorney at Law, Cincinnati, Ohio, for Plaintiff-Appellant.

          Samuel A. Green, of Fisher, Patterson, Sayler & Smith, LLP, Topeka, Kansas, for Defendants-Appellees, except Stanton A. Hazlett.

          Bryan C. Clark and Dwight R. Carswell, Assistant Solicitor Generals, Topeka, Kansas, for Defendant-Appellee Stanton A. Hazlett.

          Before GRUENDER, BENTON, and KELLY, Circuit Judges. [**]

          PER CURIAM.

         Phillip D. Kline was suspended indefinitely from the practice of law in Kansas. He sued those involved for violating his constitutional rights. The district court dismissed the complaint for lack of subject matter jurisdiction. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         I.[1]

         In 2010, the Kansas Disciplinary Administrator filed a formal complaint against Kline for violations of the Kansas Rules of Professional Conduct (KRPC). A panel held a disciplinary hearing in two phases from February to July 2011. In October, it released a 185-page report finding multiple violations of the KRPC. It recommended an indefinite suspension from the practice of law. Kline filed exceptions to the report. The case went to the Kansas Supreme Court.

         In May 2012, Kline moved to recuse five justices based on participation in earlier cases involving him. He argued recusal would "not hinder [his] appeal from being heard" because "the Supreme Court may assign a judge of the court of the appeals or a district judge to serve temporarily on the supreme court." See Kan. Const. art. III, §6(f) ("The supreme court may assign a district court judge to serve temporarily on the supreme court."); K.S.A. § 20-3002(c) ("The supreme court may assign a judge of the court of appeals to serve temporarily on the supreme court."). The five justices voluntarily recused.

         Justice Daniel Biles-the most senior justice remaining-appointed court of appeals judges Henry W. Green, Jr. and Karen M. Arnold-Burger and district court judges Edward L. Bouker, Bruce T. Gatterman, and Michael J. Malone to "serve temporarily on the Supreme Court to participate in the hearing and decision of Kline's case. See Kansas Supreme Court Internal Operating Procedures, Part I ("The Chief Justice is the presiding officer of the Supreme Court of Kansas. If the Chief Justice is absent or unable to act, the justice who is next senior in continuous term of service on the court shall preside.").

         In November 2012, Kline argued his case before the Kansas Supreme Court. In October 2013, the court found "clear and convincing evidence that Kline committed 11 KRPC violations." It ordered indefinite suspension. The court later denied Kline's motion for rehearing or modification, alleging factual and legal errors.

         In February 2014, Kline moved to vacate or dismiss the judgment, claiming the court was unlawfully composed because Justice Biles lacked authority to appoint replacement judges. The Clerk of the Kansas Appellate Courts did not docket the motion because the case was closed. In March, Kline petitioned for certiorari in the United States Supreme Court, alleging due process and free speech ...


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