State v. Russell
| Decision Date | 10 May 1980 |
| Docket Number | Nos. 51423,51424,s. 51423 |
| Citation | 610 P.2d 1122,227 Kan. 897 |
| Court | Kansas Supreme Court |
| Parties | STATE of Kansas, Petitioner, v. J. R. RUSSELL, Respondent, (two cases). |
Syllabus by the Court
1. A person's constitutional right to freedom of speech guaranteed by the Constitutions of the United States and of the State of Kansas is no less by reason of having received a license and privilege to practice law.
2. It is only in those instances where unbridled speech amounts to misconduct which threatens a significant state interest that a state may restrict a lawyer's exercise of rights guaranteed by the Constitutions.
3. Although a lawyer may speak out and state his opinions on current campaign issues without fear of jeopardizing his license to practice law, his First Amendment rights are not absolute. The guarantee of freedom of speech will not protect him from disciplinary action as a lawyer if he is guilty of known falsehood intentionally used and published for the purpose of misleading the voters and gaining personal advantage for himself or his candidate.
4. A lawyer is bound by the Code of Professional Responsibility adopted by rule of this court in every capacity in which the lawyer acts, whether acting as a lawyer or not.
5. A review committee of the Kansas Board of Discipline of Attorneys has the authority to dismiss a complaint against an attorney with or without prejudice under Rule 210, Rules of the Supreme Court; and when dismissal is ordered without specifying the nature of the dismissal, the dismissal is without prejudice to the filing of later proceedings in the same matter.
6. A complaint, which was previously dismissed without prejudice after an investigation under Rule 210, Rules of the Supreme Court, is not barred under theories of res judicata or double jeopardy from a hearing if it appears additional facts may be developed which were not available at the initial investigation.
Roger N. Walter, Asst. Atty. Gen., Disciplinary Counsel, argued the cause and was on briefs, for petitioner.
John Anderson, Jr., of Anderson, Granger, Nagels & Lastelic, Chartered, Overland Park, argued the cause and was on briefs, for respondent.
Two separate complaints were filed against J. R. Russell, a licensed attorney, one on April 10 and the other on April 18, 1979. The complaints were heard separately by the same panel of the Kansas Board for Discipline of Attorneys. The panel filed a report in both cases with findings and recommendations on August 31 and September 5, 1979, respectively. The respondent filed answers to the panel reports promptly, but delay in setting the cases for argument occurred when the respondent made an attempt to have the United States District Court for the District of Kansas permanently enjoin this court and the Kansas Board for Discipline of Attorneys from hearing the disciplinary proceedings. The respondent's request for injunction was denied by the federal court. Briefs were then filed by both respondent and disciplinary counsel, and we have proceeded to hear and decide the matters.
The first complaint which will be discussed and evaluated concerns a political advertisement placed in The Kansan, a newspaper of Kansas City, Kansas, in an unsuccessful attempt by J. R. Russell, respondent, to unseat Paul Haas as a member of the Board of Public Utilities. This will be referred to as the Haas complaint.
The second complaint, which will be discussed and evaluated later, concerns the handling of a tort claim by J. R. Russell which claim arose from an automobile collision occurring when a minor daughter of Paul R. Soptick was driving her father's car. This will be referred to as the Soptick complaint.
We will consider the Haas complaint first.
J. R. Russell, a lawyer, ran for public office seeking a position on the Board of Public Utilities (B.P.U.) of Kansas City, Kansas, in the April, 1979, election. The only qualification for the office is being a "qualified voter of the district." During the campaign J. R. Russell placed a political advertisement in The Kansan on January 21, 1979, which advertisement we will examine in some detail later. It will suffice to say the article was uncomplimentary of both Paul Haas and Nick Tomasic, the district attorney of Wyandotte County.
A similar article had been published by J. R. Russell in a 1976 campaign for the office of district attorney when Russell ran against Nick Tomasic for that position. At that time a complaint was also lodged with the Kansas Board for Discipline of Attorneys (Board) by Nick Tomasic. The complaint was later dismissed for lack of sufficient evidence to prove misconduct. The incident is cited by respondent to indicate bad faith in filing the present complaint because of the similarities in the article published and the previous dismissal. Respondent suggests the present complaint should have been dismissed by the Board.
The panel, after hearing the evidence, found that the respondent prepared the article for publication, placed the same in the newspaper, and knew some of the statements in the article were false, deceptive and misleading. The panel concluded that J. R. Russell had violated the following disciplinary rule:
"DR 1-102 Misconduct.
(A) A lawyer shall not:
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law." Code of Professional Responsibility, Rule No. 225, 225 Kan. xciii.
The panel recommended that J. R. Russell be disciplined and be publicly censured by this court. The respondent Russell took exception and filed an answer raising certain issues in this court concerning an attorney's right to freedom of speech under the First Amendment of the United States Constitution and Section 11, Bill of Rights, Constitution of the State of Kansas.
Section 11 of the Kansas Bill of Rights states:
"The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such rights ; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published for justifiable ends, the accused party shall be acquitted." Emphasis supplied.
The First Amendment to the United States Constitution merely states that Congress shall make no law abridging the freedom of speech, or of the press, but Section 11 of the Kansas Bill of Rights further explains that all persons may freely speak, write or publish their sentiments on all subjects, "being responsible for the abuse of such rights." This last phrase recognizes that freedom of speech and press is not without certain limitations. The two constitutional provisions are generally considered coextensive. State v. Motion Picture Entitled "The Bet", 219 Kan. 64, 72, 547 P.2d 760 (1976).
Freedom of speech and of the press, which are secured against abridgment by these Constitutions, are among the most fundamental personal rights and liberties of the people. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). These constitutional provisions do not confer an absolute right to speak or publish without responsibility for whatever one may choose to communicate. Branzburg v. Hayes, 408 U.S. 665, 683, 92 S.Ct. 2646, 2657, 33 L.Ed.2d 626 (1972). These provisions in our Constitutions have never prohibited punishment of those who abuse the freedoms guaranteed thereunder. Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931). A person's constitutional right to freedom of speech guaranteed by the Constitutions of the United States and of the State of Kansas is no less by reason of having received a license and privilege to practice law. In re Gorsuch, 76 S.D. 191, 75 N.W.2d 644 (1956), 57 A.L.R.2d 1355 (1958). The principle that the right of freedom of speech is not absolute was expressed most clearly by Justice Oliver Wendell Holmes when he said that no person has a right to cry fire in a crowded theatre.
In delineating the boundary between acceptable regulation and impermissible restraint on freedom of expression, the manner and time of regulation will affect the severity of the court's scrutiny. Restraint of speech and written publication prior to exercise of these rights presents a separate issue from regulation and discipline after the fact. Organization For A Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); State v. Motion Picture Entitled "The Bet", 219 Kan. 64, 547 P.2d 760. The cases which concern questions dealing with prior restraint of speech and press are not applicable to our present case. The imposition of the ethical obligation of honesty upon lawyers under DR1-102(A)(4) and subsequent discipline for violation of the rule is permissible and may be necessary in the interests of the administration of justice. It is only in those instances where unbridled speech amounts to misconduct which threatens a significant state interest, that a state may restrict a lawyer's exercise of personal rights guaranteed by the Constitutions. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, 64 A.L.R.2d 288 (1957); Konigsberg v. State Bar, 353 U.S. 252, 77 S.Ct. 772, 1 L.Ed.2d 810 (1957); In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959).
When conflict occurs between the regulatory powers of government, as for example the subsequent imposition of discipline for misconduct by a state licensed attorney, and the individual liberty to speak and publish, a reconciliation must be effected requiring a careful weighing and balancing of the respective interests. Such measures of regulation are not...
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