McCormick v. City of Lawrence, Kansas

• Decision Date: 07 March 2003
• Docket Number: No. 02-2135-JWL.,02-2135-JWL.
• Citation: 253 F.Supp.2d 1156
• Parties: Dale E. MCCORMICK, Curtis A. Kastl, II, Robert Coburn, and Merrily Coburn, Plaintiffs, v. CITY OF LAWRENCE, KANSAS, et. al. Defendants.
• Court: U.S. District Court — District of Kansas

253 F.Supp.2d 1156

Dale E. MCCORMICK, Curtis A. Kastl, II, Robert Coburn, and Merrily Coburn, Plaintiffs, v. CITY OF LAWRENCE, KANSAS, et. al. Defendants.

No. 02-2135-JWL.

United States District Court, D. Kansas.

March 7, 2003.

Gerald L. Cooley, Randall F. Larkin, Allen & Cooley, Lawrence, KS, for City of Lawrence, Kansas.

M. J. Willoughby, Office of Attorney General, Topeka, KS, for Defendants.

MEMORANDUM & ORDER

LUNGSTRUM, District Judge.

This action involves a number of 42 U.S.C. § 1983 claims Dale E. McCormick has brought against government officials of both the City of Lawrence and the State of Kansas, alleging that they have violated his constitutional rights on a number of occasions. Three of Mr. McCormick's claims stem from an Assistant Attorney General's decision to file a complaint against Mr. McCormick for the unauthorized practice of law in a case in which the Assistant Attorney General was involved. As part of a subsequent investigation of Mr. McCormick, two officials in the Office of the Attorney General, Consumer Protection Division, subpoenaed Merrily Coburn—the plaintiff in the underlying action on behalf of whom Mr. McCormick was accused of practicing law—to appear before them to answer questions regarding Mr. McCormick's involvement in the case and to produce her work product relating to the case. Based on the subpoena being issued and the harassing manner in which Ms. Coburn believes she was treated, she, along with her husband, Robert Coburn, have joined as additional plaintiffs in this action. They filed a pleading (which is entitled "Claims for Which Intervention is Sought by Robert Coburn and Merrily Coburn") setting forth their § 1983 claim for "Retaliating against Exercising First (and Fourteenth) Amendment Speech and Association Rights."

The matter is currently before this court on the Attorney General defendants' motion to dismiss the claim of Robert and Merrily Coburn (Doc. 144) for failure to state a claim upon which relief can be granted. Defendants assert that the Coburns' claim should be dismissed because they lack standing to bring such a claim and, alternatively, because the defendants are immune (either absolutely or qualifiedly) from such a claim.¹ Because the court agrees that the Coburns have failed to state a claim, the court grants the motion to dismiss. Specifically, Mr. Coburn only has standing to sue one of the officials, Mr. Harder, and, regardless, the three officials are immune from suit. M.J. Willoughby— the Assistant Attorney General who filed the complaint against Mr. McCormick—is entitled to qualified immunity as a complaining witness and Shelly R. Welch and David L. Harder—the two officials from the Office of the Attorney General who investigated Mr. McCormick's actions and subpoenaed Ms. Coburn—are absolutely immune from liability in their duties of investigating, working up, and presenting cases involving the unauthorized practice of law.

1. Uncontroverted Facts

The following facts are set out in the Coburns' pleading setting forth their § 1983 claim.² Merrily Coburn filed a § 1983 action in the United States District Court for the District of Kansas against Roger A. Nordeen. Kansas Assistant Attorney General M.J. Willoughby defended Mr. Nordeen in the action. In M.J. Willoughby's reply in support of defendant's motion to dismiss (in Coburn v. Nordeen), Ms. Willoughby accused Mr. McCormick of authoring Ms. Coburn's response to defendant's motion to dismiss. She then filed a complaint about Mr. McCormick with the Consumer Protection Division of the Office of the Attorney General of Kansas.

Mr. McCormick bases his claims³, which the Coburns in part join through their pleading, on Ms. Willoughby's complaint to the Consumer Protection Division. The Coburns' pleading states "that Willoughby, with retaliatory animus, fabricated evidence on which to base false complaints to the Consumer Protection Division against Coburns' and McCormick's presumed collaboration on Coburn's pleadings in Coburn v. Nordeen, id., thereby illegally enacting the machinery of a government agency—which retaliated against, interfered with, and at times totally barred the exercising of rights of association and expression guaranteed McCormick and the Coburns by the First and Fourteenth Amendments to the Constitution of the United States."

Around the first week of February, 2002, Merrily Coburn received a subpoena duces tecum from the Kansas Consumer Protection Division ("KCPD") (entitled "In the Matter of Investigation of Dale E. McCormick") directing her to appear in person before Assistant Attorney General David Harder at the Office of the Kansas Attorney General at 10:00 a.m. on the 13th of February, 2002, "to make true answers to all questions propounded to you concerning the facts and circumstances relating to complaints filed with this office against you...." The subpoena also asked Ms. Coburn "to furnish and identify" copies of (1) all documents or pleadings prepared by Mr. McCormick in the case, (2) copies of all documents or pleadings prepared solely by Ms. Coburn in the case, and (3) "[a]ll drafts, research materials, notes, sources and similar material generated when preparing the documents referred to in request number two above." The subpoena stated that any questions pertaining to the subpoena should be directed to Shelly R. Welch, Special Agent, or David L. Harder, Assistant Attorney General, Consumer Protection Division.

Ms. Coburn appeared as directed on the 13th of February, 2002. After being sworn for purposes of the deposition, Ms. Coburn objected on video tape to the subpoena and "ensuing inquisition in David Harder and Shelly Welch's presence, stating Fifth Amendment grounds against self-incrimination, and stating marital privilege against her and her husband's work product being illegally examined." But after Ms. Coburn raised the objections, "Shelly Welch appeared to tamper with the video recorder, David Harder threatened Mrs. Coburn with a court order, and Merrily Coburn was sworn in again."

During the course of the inquiry, all of Ms. Coburn's "drafts, research materials, notes, sources and similar material generated when preparing documents/pleadings in the case" were examined by Mr. Harder and Ms. Welch. Also, Mr. Welch "related a story to Mrs. Coburn about another pro se plaintiff who was `in a lot of serious (in gist-but not necessarily verbatim) trouble'—largely in part because the other pro se plaintiff had sought out information from other non-lawyers and acted upon said information, just as Merrily Coburn had done in Coburn v. Nordeen."

Ms. Coburn also alleges that she "was directed by David Harder to give an accounting of the background facts which gave rise to her claim in Coburn v. Nordeen, background facts that couldn't possibly have been pertinent to the investigation of Dale McCormick, but which assuredly were relevant to tactical defense concerns of the ongoing litigation in which Harder's co-worker M.J. Willoughby was (and is) defending Nordeen, whom Mrs. Coburn was (and is) continuing to prosecute."

Finally, after the inquiry ceased and the recorder was stopped, "David Harder `threatened' Mrs. Coburn not to associate with Dale McCormick, inferring that McCormick was a criminal, and that Merrily Coburn's continued association with McCormick would get her into trouble of a very serious nature." Also, because Mr. Harder learned during the inquiry that Robert Coburn (Ms. Coburn's husband) had collaborated with her on the construction of pleadings in the case, he "`cautioned' that she and her husband were `walking a fine line,' inferring that their continued collaboration and prosecution of Coburn v. Nordeen was somehow tantamount to illegal, for which of course, there could or would be serious negative repercussions." (emphasis in pleading).

Based on these allegations, the Coburns (both Robert and Merrily) have brought a "Sec.1983 Retaliation against Exercising First (and Fourteenth) Amendment Speech and Association Rights—Claim." In the claim, they allege that around the first week of February, 2002, M.J. Willoughby "did, with retaliatory animus, and without any objective basis, initiate a Civil Investigative Demand⁴ against Merrily Coburn." According to the pleading, "[t]he illegal initiation and execution of said [subpoena] caused Mrs. Coburn to stop exercising her First Amendment rights of association and expression regarding one Dale McCormick, out of fear that Ms. Willoughby could further punish her, with impunity, for her association with Dale McCormick." Robert Coburn, having collaborated with his wife on the pleadings in the case, "also stopped exercising his First Amendment rights of association and expression with one Dale McCormick, out of fear that Ms. Willoughby could punish his good friend Dale for what Robert was doing, and punish Robert's wife for her husband's continued association with Dale." In short, the Coburns explain, "Robert Coburn's First Amendment rights of association and speech with one Dale McCormick were so closely intertwined with those of his wife that they were trampled, tied, and bagged along with those of his wife by means of M.J. [Willoughby]'s illegal procurement of the [subpoena], and by David Harder and Shelly Welch's illegal execution of the [subpoena.]"

The pleading adds that the Coburns bring the same claim against David Harder and Shelly Welch, who "illegally executed the [subpoena] on or about the 13th of February, 2002, i.e., without any objective basis upon which to base a `reasonable belief that the [unauthorized practice of law] supposedly being investigated had occurred." Such action "frightened Mr. and Mrs. Coburn away from their First Amendment right of speech and association with Dale McCormick." Mr. Harder's "veiled threats" also "terrified" Ms. Coburn and "also had a chilling effect on Robert Coburn's right to speech and association with his own wife, regarding Coburn v....