PHILLIP D. KLINE, Plaintiff - Appellant,
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,
from the United States District Court for the District of
Kansas (D.C. No. 2:15-CV-09335-DGK)
on the briefs:[*]
Richard J. Peckham, Attorney at Law, Andover, Kansas; Thomas
W. Condit, Attorney at Law, Cincinnati, Ohio, for
A. Green, of Fisher, Patterson, Sayler & Smith, LLP,
Topeka, Kansas, for Defendants-Appellees, except Stanton A.
C. Clark and Dwight R. Carswell, Assistant Solicitor
Generals, Topeka, Kansas, for Defendant-Appellee Stanton A.
GRUENDER, BENTON, and KELLY, Circuit Judges. [**]
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.
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.
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.
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.").
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.
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 ...