Justices Uneasy About Sanctioning Prosecutor

By Sherman Smith, Kansas Reflector

TOPEKA — Former Douglas County District Attorney Suzanne Valdez told members of the Kansas Supreme Court on Tuesday that she “never in my craziest of nightmares” thought she would be standing before them at a disciplinary hearing.

Valdez, who lost a reelection bid last year, faces potential discipline for a news release and Facebook post in March 2021 that included a personal attack on a judge. During a 10-minute speech before the court on Tuesday, she described the “chaotic time” in which she took office.

She told justices she was “emotionally fragile” in 2021 because her brother had died from a drug overdose, her predecessor refused to help with the transition of power, and the district court — without her input — had decided to resume jury trials on her first day in office, even though COVID-19 vaccines were not yet widely available.

Douglas County District Judge James McCabria issued a news release that said the court had “consulted with all the stakeholders,” the Lawrence Times reported. Valdez wanted the public to know she wasn’t involved.

In a Facebook post, she wrote: “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. Not me, says I!!”

On Tuesday, Valdez said she should have taken the high road but was “petty” instead.

“I’m sorry. I apologize. I made a grave mistake when I allowed myself in my frustration and the turmoil and COVID and all the anxiety and all of that to get the better of me,” Valdez said. “That’s not who I am. I’m a very passionate person. I’m a very honest person. I am all those things, and I am sorry.”

She wiped away tears as she sat down, took a deep breath and stared at the notebook in front of her.

Five members of the court heard arguments from Kimberly Bonifas, a Wichita lawyer who prosecuted Valdez on behalf of the Office of the Disciplinary Administrator, and Stephen Angermayer, a Pittsburg lawyer who defended Valdez. Justice Evelyn Wilson, who plans to retire July 4, is not hearing any more cases, and Justice K.J. Wall recused himself.

Bonifas had argued that Valdez should lose her license, but a three-member disciplinary panel recommended she face public censure instead, leaving a blemish on her record that could limit a lawyer’s professional career. Angermayer asked for an informal admonishment instead.

During Tuesday’s hearing, Justices Caleb Stegall and Dan Biles questioned the legitimacy of an ethics rule that prohibits “undignified or discourteous conduct” by an attorney that is “degrading” to a court.

Bonifas said personal comments about a judge would be inappropriate even in a closed-door meeting, let alone a public news release and social media post.

Stegall said the rule in question has to do with “big ideas,” like maintaining the integrity of the judicial system. But even if Valdez’ comments were “stupid and foolish,” he said, “does it really serve the legitimacy and integrity of the judicial branch to punish speech that we find offensive?”

“It just strikes me that we potentially do more harm than good when we punish speech,” Stegall said.

Bonifas said Valdez could have criticized the judge without resorting to “petty criticism” and name-calling.

Stegall’s response: “Is it wise to punish petty criticisms? Doesn’t that make us look petty?”

Biles asked how the violation in question could survive a First Amendment test, especially since it was about an individual judge and his press release and not about an adjudication. And he said Valdez’ comments were “off-campus,” meaning on Facebook, rather than in a court proceeding.

“What’s the government interest in preventing a lawyer from criticizing a judge?” Biles said.

Bonifas argued that Valdez harmed the public. She said the judge was speaking on behalf of the court and was trying to educate the public about the court’s plan to address health and safety concerns. That communication was met with name-calling that left members of the public “appalled,” Bonifas said.

Justice Eric Rosen said “we seem to be forgetting” that courts in 2021 were struggling to figure out how to protect constitutional rights while dealing with a public health crisis.

“When we were in the throngs of that stuff, we were desperate to try to get just the process going to meet all of the needs of both prosecutors’ offices, defense counsel and criminal cases and just all cases,” Rosen said.