Johnson v. State of Kan.
| Decision Date | 18 April 1995 |
| Docket Number | No. 94-4149-SAC.,94-4149-SAC. |
| Citation | 888 F. Supp. 1073 |
| Parties | Ian Bruce JOHNSON, Plaintiff, v. The STATE OF KANSAS, Kansas Supreme Court, Defendant. |
| Court | U.S. District Court — District of Kansas |
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Michael F. Broemmel, Broemmel, Harris & Walters, Chtd., Topeka, KS, for plaintiff.
Carl A. Gallagher, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for defendants.
The case comes before the court on the defendant's motions for summary judgment and dismissal (Dk. 12), the plaintiff's motion to strike and for partial judgment on the pleadings (Dk. 5), and the defendant's motion to strike affidavit of the plaintiff's counsel (Dk. 30). The plaintiff, Ian Bruce Johnson ("Johnson") filed this action alleging the defendant Kansas Supreme Court violated Title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131, et seq.,1 when it denied his application to sit for the Kansas bar examination. Specifically, Johnson alleges that he is a qualified individual with a disability, namely chronic bipolar affective disorder, and that the Kansas Supreme Court denied his bar application because of his disability.
This case presents a unique amalgamation of motions. The parties submit materials beyond the pleadings without serious objection to the court's consideration of them. The exception is the defendant's motion to strike the plaintiffs counsel's Rule 56(f) affidavit. Based upon the court's decision, this exception and the motion are moot. Rather than belabor the order with the relevant standards for deciding each motion, the court will confine itself to the summary judgment standards. The court, however, has considered and weighed the arguments and authorities advanced in all the pending motions.
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case." Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The court views the evidence and draws any possible inferences in the light most favorable to the non-moving party. MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1117 (10th Cir.1991).
More than a "disfavored procedural shortcut," summary judgment is an important procedure Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir. 1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).
1. Johnson submitted a verified petition for admission to the Bar of Kansas to the Clerk for the Appellate Courts of Kansas on April 29, 1992. Johnson fully and accurately answered all questions required on the petition form. Johnson also submitted all requested information, including four sworn certificates of good moral character. In his petition or in connection with it, Johnson further established that he met the educational requirements set out in the Kansas Supreme Court's rules.
2. This was not the first time that Johnson applied to take a state bar examination. In fact, Johnson filed an application in Iowa on October 7, 1982, and another in Kansas on November 29, 1984. His application to take the Iowa bar was twice denied. As for his first Kansas application, it was deemed withdrawn when he failed to communicate with and appear before the Kansas Board of Law Examiners ("Board").
3. Johnson's 1992 application was forwarded to the Disciplinary Administrator of Kansas ("Disciplinary Administrator") for investigation. The Disciplinary Administrator requested from Johnson additional materials and reports about current treatment for any mental problems or treatment, including those that resulted in his prior criminal convictions, and additional reports and police information about his prior criminal cases. This material was furnished and gathered as requested. The material later was assembled and provided to the Board for its review.
4. In 1977, Johnson was charged with lewd and lascivious behavior. The charge was amended to assault and battery to which Johnson pleaded guilty. Johnson described this event as attempting to touch "the crotch of a 14-year-old girl on the street."
5. In 1982, there was another incident. Johnson entered a plea of guilty on a charge of assault "by poking female in the crotch while at the Iowa Memorial Union." As part of his application for deferred sentencing, Johnson asserted that he suffered from "Paraphilias," a sexual deviation disorder. Johnson also presented an affidavit from his treating psychiatrist and psychologist which diagnosed plaintiff as suffering from "voyeurism." Johnson's request for deferred sentencing was granted.
6. Johnson later sought early discharge from the deferred sentencing and expungement of the criminal charge. To support his request, Johnson presented an affidavit from his psychiatrist describing the course of treatment for his disorder. His application for early discharge and expungement was granted.
7. As part of his application to take the bar examination in Iowa, Johnson provided an expert report from his psychiatrist diagnosing his disorder as a combination of "voyeurism and frottage."
8. Six months after applying to take the Kansas bar examination, Johnson pleaded guilty to misdemeanor sexual battery in Douglas County, Kansas, District Court, on May 30, 1985. Johnson was committed to Topeka State Hospital prior to sentencing. According to Johnson, the primary diagnosis of his condition by staff at Topeka State Hospital was "atypical sexual disorder." On November 22, 1985, Johnson was sentenced to one year in the county jail but paroled from that sentence. This conviction was expunged on February 10, 1992. Johnson has had no further incidents involving improper sexual behavior since 1985.
9. In response to the Disciplinary Administrator's request, Johnson furnished the Board with a psychiatric evaluation from Leonel A. Urdaneta, M.D. This psychiatrist diagnosed Johnson as suffering from "Bipolar Affective Disorder presently in remission." Dr. Urdaneta subsequently testified that this disorder presents with various symptoms at different points with one being "hypersexuality." Dr. Urdaneta also testified that recurrence of the bipolar disorder would be more likely when plaintiff was placed under stress. Dr. Urdaneta agreed that the practice of law was a stressful profession. Dr. Urdaneta testified that bipolar disorder is chronic and tends to worsen with age. Dr. Urdaneta indicated that Johnson was stable, reliable and in remission in that he did not present with any major symptoms of his mental disorder. Dr. Urdaneta had not reviewed plaintiff's psychiatric records from the University of Iowa, Topeka State Hospital or the Menninger Foundation in diagnosing plaintiff's condition. Dr. Urdaneta also suggested that plaintiff was a high risk for recurrence with increased stress without treatment. Johnson has continued his treatment with Dr. Urdaneta from the date of his hearing before the Board to the present.
10. In the fall of 1989, the Disciplinary Administrator told Johnson that he believed the Kansas Supreme Court would not admit any applicant having a history of serious mental disorder, including plaintiff, unless that applicant could prove his or her condition to be "cured" — i.e., could present psychiatric expert testimony that the condition had been asymptomatic without treatment for at least two years and was, with reasonable medical certainty, expected to continue asymptomatic without treatment indefinitely in the future.
11. On August 28, 1992, in an attempt to encourage Johnson to withdraw his application without a hearing, the Administrator reiterated his belief that it is the Kansas Supreme Court's practice to require applicants who have a history of bipolar disorder to prove a "cure" as a prerequisite to admission.
12. At this same meeting on August 28, 1992, the Administrator also...
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