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Appellate Practice

Kansas Appeals Court Tells Lawyer His Oft-Repeated Argument Is ‘Legally Vacuous’

Posted Mar 2, 2011 6:30 AM CDT
By Debra Cassens Weiss

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Updated: A Kansas appeals court is apparently tired of hearing the same argument by the same counsel about the due process rights of drunken driving defendants facing license suspension.

The lawyer for alleged drunken driver Melissa DeLong has made the same failing argument in at least half a dozen cases decided by the appeals court in unpublished opinions, according to the latest decision (PDF) issued Friday. DeLong’s constitutional claim is “factually insupportable and legally vacuous,” the appeals court wrote.

The body of the opinion does not mention the lawyer by name, but he is identified as Michael Holland II of Holland and Holland in Russell, Kan., in the listing of lawyers arguing the appeal.

“We publish this decision not because it breaks new ground or comes to some different result,” the court said. “It doesn't. Instead, we take this opportunity to declare the argument DeLong advances to be wholly and unequivocally meritless in a decision that, unlike the earlier unpublished rulings, carries the full force of precedent.”

The lawyer’s argument, the court said, appears to be that his client DeLong suffered some consternation when she received a notice that her driving privileges would be suspended in a matter of weeks. Two days later, however, a new notice was dispatched informing DeLong that her suspension was on hold pending a ruling in her requested appeal.

“Accordingly, DeLong's discombobulation should have been short-lived,” the court said. “And discombobulation, whatever its duration, does not support a constitutional due process claim.” The court concludes that DeLong’s constitutional claim “looks less like the defense of a legitimate constitutional right than a tool for delay.”

Holland told the ABA Journal he disagrees that his argument was "vacuous" and said he had an ethical obligation to continue making the argument until a published opinion is issued. He also said he is pursuing more egregious cases where his clients lost their driving privileges before an administrative hearing was held.

The appeals court "focused on DeLong, a much weaker case, but didn’t address the much stronger cases where my clients’ driving rights were suspended prior to receiving their due process hearing," Holland said.

He notes that this isn't the first time he was rebuffed several times by the appeals court. He filed multiple appeals challenging preliminary breath tests on Fourth Amendment grounds and lost in the appeals court. "I got the same language regarding the preliminary breath test issue," Holland said, "but I refused to give up and ultimately the Kansas Supreme Court agreed with me." The case was State v. Jones.

Updated at 10:40 a.m. to include comments from Holland.

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