Topeka.  On Thursday attorney Eric Rucker faced a hearing panel of three members of the Kansas Board for Discipline of Attorneys for actions as Assistant Attorney General in legal matters involving the investigation of abortion clinics in Kansas.

This was a case of attorneys accusing another attorney, attorneys defending an attorney, with attorneys serving on the hearing panel.

The hearing was originally scheduled to take 4 days, but it was reduced to only one.

At the hearing the Disciplinary Administrator dropped allegations of dishonesty, fraud, and misrepresentation against Rucker in a stipulation that was agreed to in late March.  This stipulation validated much of Rucker’s motion in limine (a pre-hearing motion for a ruling about evidence that may be introduced) and Rucker’s claims the Disciplinary Administrator had introduced politics into the attorney ethics case.  Much of the Disciplinary Administrator’s original complaint against Rucker for dishonesty collapsed.

In March Rucker’s attorney, Caleb Stegall, filed a motion to disqualify one of the members of the hearing panel because of her political donations and her business connection to the late abortion Dr. George Tiller in Wichita.

Patricia Dengler, chair of Rucker’s hearing panel, had made political contributions to two of Phill Kline‘s political opponents.  Attorney General Kline had been Rucker’s boss.

The motion to remove Dengler was denied even though Rucker’s motion made strong arguments:

Hearing Panel members are held to the ethical standards of Judicial Canons and “shall refrain from taking part in any proceedings in which a judge similarly situated would be required to abstain.” …

… a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. …”

Stegall voiced no opposition today to the hearing panel that consisted of:

• Patricia M. Dengler, Wichita
• Dennis D. Depew, Neodesha
• Ronald W. Nelson, Shawnee Mission

Stipulation

The Disciplinary Administrator and Rucker agreed to the evidence to be considered in the case in this stipulation:

Stipulation in the matter of Eric K Rucker, Respondent –

In his opening remarks, Stegall said

• “not a single allegation from the original complaint remains.”
• “every allegation by the Disciplinary Administrator has been dismissed or abandoned”

The original complaint made allegations such as:

• “Mr. Maxwell and the Respondent [Rucker] knew the statistical information contained in the Attorney General’s representations to the court were misleading, however, neither Mr. Maxwell nor the Respondent took any action to correct the misrepresentations previously made to the court.”
• “During the oral argument, the Respondent made three (3) false statements …”
• “Respondent falsely advised the Court …”
• “The Respondent’s statement was false and misleading.”

But the stipulated facts of the case (shown above) were

• “The respondent’s statements to the Court … were, to the best of his knowledge, accurate when made …”
• “The respondent’s position is that no supplement to his representation to the court was required.”
• “The violations  … by respondent did not involve any dishonest conduct.”

Point of Contention

In the morning session Rucker’s attorney and the Disciplinary Administrator agreed to disagree on the issue of the investigation of “live births” and how Rucker dealt with oral arguments in that matter in Supreme Court testimony on Sept. 8,  2005.

Alexander Walczak, the Deputy Disciplinary Administrator, held that Rucker’s statements were truthful, but misleading, and Rucker had a duty to supplement his oral argument to the Supreme Court.  The Disciplinary Administrator claimed without this supplement Rucker’s answer was misleading and resulted in a misunderstanding by the Court.

Rucker said he was asked to testify during the middle of an investigation about live births and that his answers were always truthful and accurate.

Rucker explained to the Disciplinary panel how he had been accurate in answering questions about records “investigated” vs. records “subpoenaed.”

Rucker felt no duty to file a “Motion of Clarification” with the Kansas Supreme Court because he thought there was no confusion.

At least partially because of a disagreement between Rucker and Attorney General Phill Kline over “mandatory” reporting, a “Motion of Clarification” had been filed, but Rucker had not signed it.

Walczak grilled Rucker about this motion, asking why he was not involved in the clarification of what he had said.  Rucker said he was involved in discussions about the motion, but did not remember other details, such as who prepared the motion, who signed the motion, and who filed the motion.  Rucker said he was “disappointed” that the Motion of Clarification was made since he had been “honest and complete” in his oral arguments to the Court.

Rucker told the panel the issue of live births was not the main issue before the Supreme Court at that time, but rather whether certain subpoenas should be quashed.   The issue of live births was not important judicially to the question of the subpoenas.

Rucker explained that Kline’s legal opinion as Attorney General was that KDHE was a “mandatory reporter” about possible crimes involving sexual abuse of minors based on live birth records, and that was the likely basis for the Motion of Clarification.  Rucker said it is not uncommon for attorneys to disagree about statutes.

The crimes being investigated involved sexual abuse of minors including both pregnant females under 16, and also older woman who had been impregnated by males under 16.

Stegall said the Disciplinary Administrator alleged Rucker had a duty to file supplementary information with the high court, but the Disciplinary Administrator was asking Rucker to answer questions that were never asked by the court in that supplement.  “I cannot presuppose questions that were not asked,” said Rucker.

Walczak asked Rucker about testimony given in the Supreme Court where the Disciplinary Administrator claimed he may have been misleading.  Rucker explained he was always truthful but also was also trying to comply with a gag order on him from a lower court that restricted his comments.  Rucker explained his conflict in trying to comply with a gag order from a lower court while being responsive to questions from the Supreme Court.

Walczak asked Rucker about specific conversations and discussions from about matters five years ago.  Rucker remembered general discussions but often “could not recall” the specifics of conversations.  Rucker said he was not trying to be evasive, but “I’m trying to be consistent and accurate” while under oath:  “I cannot state under oath because I don’t remember the specifics of the conversation” from nearly five years ago.

Rucker claimed the matter over live births, the issue of his disagreement with his boss Kline over the “mandatory” or “not mandatory” reporting by KDHE, was not the central issue in the matter being considered by the Court.  Stegall said Rucker’s actions had no impact on the result of the case.

Afternoon Session

The hearing was scheduled to continue at 1:15 but discussions among the attorneys delayed the start to 2 PM.  At that time Disciplinary Administrator Stanton Hazlett announced that many witnesses had been dismissed.

Hazlett revealed information about the Motion of Clarification that was not known during the morning session.  Hazlett revealed that the motion in question had been filed under seal to the Court, and for now there was no way to discover who signed or filed it.

Hazlett said that only mitigating testimony would be heard during the afternoon session.

Two country attorneys spoke on behalf of Rucker.

Coffee County attorney Doug Witteman described a long friendship with Rucker and had “the highest regards for Rucker’s professional ability and character.”  He said he had “never known Rucker to be dishonest in any context.”

Geary County attorney and counselor Steven Opat had known Rucker professionally for a number of years, including being on opposite sides in a number of legal battles.  Opat said he had the highest regard for and trusted Rucker and knew Rucker to be an honest man.

Closing Statements

Woznack reviewed aspects of the case:

• The Disciplinary Administrator claimed Rucker’s Supreme Court oral argument statements were not always fully accurate, but Rucker claimed they were.
• The Disciplinary Administrator claimed Rucker needed to clarify his Supreme Court statements, but Rucker said no clarification was needed.

Woznack contented that Rucker was “correct to a point, but didn’t tell the whole story.”

Woznack’s remarks upset Rucker’s attorney.  Stegall demanded that Woznack’s closing remarks be stricken and said the remarks were contradictory to the evidence in the stipulation

Stegall reminded the panel that the Respondent did not bear the burden of proof and said the Disciplinary Administrator had not met the “clear and convincing” burden of proof.  Stegall asked the panel for a finding consistent with the stipulation, the evidence presented, and the transcript of oral arguments.

Sanction

During the discussion of an appropriate sanction, a matter from the stipulation was introduced and discussed.

In the stipulation Rucker admitted that a spreadsheet existed that possibly could have identified adult patient names at an abortion clinic. The spreadsheet was created by an entry-level investigator, Jared Reed, during the Kline administration, but neither Kline nor Rucker knew about the spreadsheet during their investigations, nor had they asked for it to be created.  The spreadsheet included 221 potential matches between KDHE records and records obtained from LaQuinta Inn, a motel where Dr. Tiller’s patients stayed during their abortion procedures.

Rucker admitted that if he had known about the spreadsheet his answers in oral arguments to the Kansas Supreme Court may have changed.

Rucker became aware of the spreadsheet during the Tiller trial in late 2008 or early 2009 and failed to notify the Disciplinary Administrator of its existence. Apparently, the Disciplinary Administrator knew about the document before Rucker, after it had been discovered by a staff member of Attorney General Stephen Six in late 2008.

Stegall used discussion of this spreadsheet and the previous discussion about the Motion of Clarification to point out the hypertechnical nature of the violations against Rucker.  Stegall said the “severity of the violations is negligible” and that Rucker may have violated the letter of rules but he had never violated the spirit of those rules.

Disciplinary Administrator Hazlett suggested Rucker’s actions warranted a reprimand, which would be a form of public censure.  Hazlett said he did not think the matter against Rucker only involved hypertechnical violations.

The panel took the matter under advisement and will announce their decision at a later date.

The video below shows comments from Caleb Stegall and Ron Keefover:

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Legal Documents:

• Rucker Formal Complaint, Nov. 23, 2009.
• Rucker Answer, Jan. 25, 2010.
• Rucker Motion to Reconsider Probable Cause Finding, Jan. 25, 2010.
• Rucker Motion for Disqualification, March 4, 2010.
• Disciplinary Administrator’s Response to Respondent’s Motion for Disqualification, March 5, 2010.
• Rucker’s Reply to the Disciplinary Administrator’s Response to his Motion for Disqualification, March 8, 2010.
• Rucker Motion in Limine, March 22, 2010.
• Rucker Stipulation, April 1, 2010.

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Related:

• Former deputy attorney general in Kansas acknowledges technical violations of ethics rules, Kansas City Star, May 13, 2010.
• Rucker answers discipline board, Topeka Capital-Journal, May 13, 2010.
• Former Kansas Deputy AG Has Ethics Hearing, WIBW, May 13, 2010.
• Only handwritten notes allowed at Rucker disciplinary hearing, Kansas Watchdog, May 4, 2010.
• Lawyer hearing a unique creature, Topeka Capital-Journal, May 8, 2010.
• Former AG Phill Kline responds to attorney ethics complaint, Kansas Watchdog, April 29, 2010.
• Rucker claims Disciplinary Administrator is introducing politics into attorney ethics case, Kansas Watchdog, March 22, 2010.
• Rucker says Disciplinary Administrator using “Inflammatory Language,” Kansas Watchdog, March 8, 2010.
• Rucker files motion to reconsider probable cause finding in attorney ethics case, Kansas Watchdog,  Jan. 25, 2010.
• Attorney disciplinary complaint filed against former AG Phill Kline, Kansas Watchdog, Jan. 19, 2010.
• Formal ethics complaint against Stephen Maxwell, former Kline assistant, Kansas Watchdog, Sept. 21, 2009.
• Kansas Supreme Court denies request to Tweet or make audio recordings, Kansas Watchdog, Sept. 17, 2009.

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Contact: Earl F Glynn, earl@kansaswatchdog.org, KansasWatchdog.org