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ACLU drops lawsuit alleging agency's retaliatory complaint

Posted at 7:31 PM, Sep 07, 2020
and last updated 2020-09-07 20:31:39-04

BELLE PLAINE, Kan. — The American Civil Liberties Union of Kansas on Monday dropped its lawsuit that accused a former lawyer for the state utilities regulating agency of filing a baseless, retaliatory complaint against two environmental activists.

Last month, U.S. District Judge Holly Teeter gutted most of ACLU's lawsuit by finding that the members of the Kansas Corporation Commission are immune from liability. That left former general counselor Dustin Kirk as the sole remaining defendant.

A joint stipulation of dismissal was filed Monday, with the parties agreeing to bear their own costs and fees.

ACLU said it decided to voluntarily dismiss its claim against Kirk because they expected Teeter to also find Kirk entitled to immunity, as she had for Shari Albrecht, Susan Duffy, Dwight Keen, and Jay Emler — all current or former commissioners.

“It does not make sense for us to waste our time and the court’s time when we know what the court will do with that particular claim,” ACLU Legal Director Lauren Bonds said.

The lawsuit contended that Kirk filed a bogus consumer protection complaint in 2018 against activists Cindy Hoedel and Scott Yeargain. The complaint alleged they engaged in the unauthorized practice of law because they shared information and advice with other concerned citizens protesting injection well applications.

Kirk left his job at the Kansas Corporation Commission that year and the agency has said it did not learn about his complaint to the Kansas attorney general’s office until after he was gone.

Teeter noted in her Aug. 20 ruling that whether the commissioners' suspicions were "correct or baseless or even retaliatory" is not relevant to the immunity issue. The court only considered whether their actions were related to their duties.

Bonds said the ACLU has concerns about the conclusions that can be drawn from the judge's decision — that anyone can be absolved of liability because of the function of their job.

“That is very concerning," Bonds said, "and if that is the case, there are so many elected officials and so many government officials who have just been given a license to retaliate against someone because they do not like what they are saying or they don't like the values or the ideas they are promoting."

The Kansas Corporation Commission said in an emailed statement Thursday that while the lawsuit against the commissioners was dismissed based on their immunity, the commissioners were not aware of the complaint filed with the attorney general’s office until contacted by the media.

Commission Director Linda Berry said the commission has a protest process in place to give Kansans an opportunity to express their concerns and participate in the regulatory process.

“It is part of the agency's job as a regulator to be responsive to citizen protests and we take that responsibility seriously,” she said. “It is not a practice or policy of the KCC to file complaints against protesters.”

The ACLU lawsuit said Kirk’s complaint chilled the activists' advocacy efforts and constituted unlawful retaliation under the First Amendment. The court noted in its ruling that this claim was “somewhat dubious” as the activists acknowledged they continued to engage in injection-well protest activities.