Court is not 'enforcement division' for 'Miss Manners,' concurring judge says as discipline case is tossed
The Kansas Supreme Court has rejected a recommended censure against a former district attorney who issued a press release questioning a chief judge’s statements about a plan to host jury trials at the county fairgrounds during the COVID-19 pandemic.
The state supreme court imposed no discipline against former Douglas County, Kansas, District Attorney Suzanne Valdez and dismissed the ethics case against her in an Aug. 29 opinion noted by the Legal Profession Blog and the Volokh Conspiracy.
The state supreme court said Valdez’s comments criticizing the chief judge were made “outside an adjudicative setting,” and they are not covered by a disciplinary rule prohibiting undignified and discourteous conduct toward a tribunal.
A concurring opinion by Kansas Supreme Court Justice Caleb Stegall is getting bloggers’ attention. Stegall said the state supreme court is not the “enforcement division” for “Miss Manners,” and Kansas judges “will not wilt in the face of lawyer criticism.”
A hearing panel of the Kansas Board for Discipline of Attorneys had recommended censure after concluding that Valdez violated the ethical ban on discourteous comments when she made two statements. The first was a press release that said she was not consulted about the jury trial plan, which was contrary to an assertion by the chief judge about conferring with stakeholders. The second was Valdez’s reference to an “insecure man” in a Facebook post that could reasonably be interpreted to apply to the chief judge. The post included Valdez’s press release.
“Women of the world—be prepared! If you are hardworking, outspoken, honest, and in a position of authority, the insecure man will try to tear you down,” Valdez wrote.
Stegall said Valdez’s “intemperate comments” led to “countless news stories, public outcry, lawyers hired, weeks and months of investigations and hearings, and a subsequent election for Douglas County district attorney at which [Valdez] was unseated in part because of these charges.”
“Was it worth it? No, it was not,” Stegall concluded.
Stegall said he feared that attorney speech could be chilled by well-meaning but aggressive action of the Office of the Disciplinary Administrator “to take up the cause of bruised judicial feelings and punish all manner of ‘discourtesies.’ To which I can only say, ‘Stop it!’ Kansas judges are not so delicate. We will not wilt in the face of lawyer criticism—or even an uncouth comment or name-calling.”
The Kansas bar and bench should heed the directive of actor Tom Hanks’ character in the 1992 film A League of Their Own, “There’s no crying in baseball,” Stegall wrote.
“I have said it before, but it bears repeating—the practice of law is not a finishing school for debutants preparing for their first dance,” Stegall wrote. “Miss Manners has much to commend her within a polite and respectful society, but we are not her enforcement division.”
Justice Eric S. Rosen dissented.
“Attorneys are expected to advocate zealously within the bounds of the law and our ethical standards, not engage in inflammatory attacks that demean the dignity of the bench and bring disrepute to the profession as a whole,” Rosen wrote.
The Lawrence Times had coverage of the decision.
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