Bruce v. Kelly

1

MARK A. BRUCE, Plaintiff, v. LAURA KELLY, Governor of the State of Kansas; WILL LAWRENCE, Chief of Staff for Governor Kelly; and HERMAN T. JONES, Superintendent of the Kansas Highway Patrol, Defendants.

No. 20-4077-DDC

United States District Court, D. Kansas

December 15, 2023

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, UNITED STATES DISTRICT JUDGE

Plaintiff Mark A. Bruce served as Superintendent of the Kansas Highway Patrol (KHP), an unclassified, at-will position. The Kansas Governor, defendant Laura Kelly, decided to make a change in KHP's leadership. She tasked her Chief of Staff defendant Will Lawrence, to effectuate this change. Chief of Staff Lawrence met with plaintiff and asked him to resign. Governor Kelly then appointed defendant Herman T. Jones as KHP's Superintendent. Plaintiff resigned and subsequently retired from the KHP. Plaintiff brings this suit against Governor Kelly and Superintendent Jones in their official capacities, claiming they violated his due process rights. He also sued Chief of Staff Lawrence in his individual capacity for violating plaintiff's due process rights and tortiously interfering with plaintiff's business relationship with the state of Kansas. Doc. 1. While the Governor may terminate the KHP Superintendent as an at-will employee, a Kansas statute provides that the Superintendent if terminated, may return to the position he held before Superintendent. Kan. Stat. Ann § 74-2113. And plaintiff previously served as a KHP Major, a classified position with employment protections. So, plaintiff maintains that defendants unconstitutionally deprived him of a property interest-returning to Major-when they terminated him without due process of law. Plaintiff also claims that Chief of Staff Lawrence tortiously interfered with his business relationship. Defendants move for summary judgment against all claims, arguing that no reasonable factfinder could conclude that they violated plaintiff's due process rights or tortiously interfered with plaintiff's business relations because plaintiff voluntarily resigned. Doc. 38. Defendants also ask the court to grant Chief of Staff Lawrence qualified immunity on the due process claim. Id.

For reasons explained below, the court denies defendants' request for summary judgment on Count I, plaintiff's claims that Governor Kelly and Superintendent Jones violated plaintiff's due process rights. The court grants Chief of Staff Lawrence qualified immunity against plaintiff's due process claim and thus grants summary judgment against Count II on that basis. The court also grants summary judgment for Chief of Staff Lawrence on Count III, plaintiff's tortious interference claim.

I. Alleged Sham Declaration

Before reciting the summary judgment facts relevant to the pending motion, the court addresses defendants' reply argument that plaintiff's response improperly relies on a sham declaration. Doc. 40. Plaintiff asks the court for leave to file a sur-reply addressing defendants' argument. Doc. 41. The court first considers plaintiff's sur-reply request, then evaluates the merits of defendants' argument that the contested declaration is a sham.

A. Plaintiff's Sur-reply

Plaintiff's response relies on facts from plaintiff's attached second declaration. Doc. 39; Doc. 39-1 at 4-5 (Pl. Second Decl.). Defendants, in their reply, argue that plaintiff's second declaration is a sham and thus ask the court to disregard statements made there. Doc. 40 at 5. Plaintiff moves to file a sur-reply to respond to defendants' sham declaration argument. Doc. 41. The legal standard for sur-replies follows.

Sur-replies are permitted only with leave of court and under “rare circumstances” after a showing of good cause. Humphries v. Williams Nat. Gas Co., No. 96-4196-SAC, 1998 WL 982903, at *1 (D. Kan. Sept. 23, 1998) (citations and internal quotation marks omitted). For example, when a moving party uses their reply to present new material-i.e., new evidence or new legal arguments-and if the court elects to rely on that new material, it should give the nonmoving party an opportunity to respond. See Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005). These rules governing sur-replies are based on common sense. They “are not only fair and reasonable, but they assist the court in defining when briefed matters are finally submitted and in minimizing the battles over which side should have the last word.” Humphries, 1998 WL 982903, at *1 (citation and internal quotation marks omitted). The court now applies these common sense rules to plaintiff's request.

Here, the court concludes that a sur-reply is warranted. Defendants' reply introduces a new legal argument-that plaintiff's second declaration is a sham. Doc. 40. Fairness and reason favor granting plaintiff's request to rebut defendants' attack. The court thus grants plaintiff's Motion for Leave to File a Sur-Reply (Doc. 41) and considers the substance of his sur-reply. Now, the court decides the merits of defendants' sham declaration argument.

B. Plaintiff's Second Declaration

Defendants contest two specific paragraphs in plaintiff's second declaration. They argue that those paragraphs are sham testimony that the court shouldn't consider. The court addresses each paragraph individually, below, ignoring the uncontested paragraphs. But, first, the court recites the legal standard governing sham declarations.

Courts perform a two-step analysis to determine if a declaration is a sham.^[1] At step one, courts compare the new declaration to the previous testimony and determine if the new declaration makes a material change. Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (“[C]ourts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue.”). “A change is material if it bears on an essential element of a claim or defense.” Summerhouse v. HCA Health Servs. of Kan., 216 F.R.D. 502, 508 (D. Kan. 2003) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). If the court determines that the new declaration doesn't make a material difference, the court's inquiry ends. But if the new declaration does make a material difference, the court proceeds to step two. On step two, the court must discern whether the new declaration “constitutes an attempt to create a sham fact issue.” Franks, 796 F.2d at 1237. To determine whether the new declaration is permissible or whether it's a sham, the Tenth Circuit relies on three factors:

1. “[W]hether the [declarant] was cross-examined during his earlier testimony,”

2. “[W]hether the [declarant] had access to the pertinent evidence at the time of his earlier testimony or whether the [declaration] was based on newly discovered evidence, and”

3. “[W]hether the earlier testimony reflects confusion which the [declaration] attempts to explain.”

Id. The court applies the sham declaration standard to both paragraphs challenged by defendants' argument.

1. Paragraph Three

Defendants argue that paragraph three of plaintiff's second declaration changes his testimony about how long the March 28, 2019, meeting lasted. During his deposition under oath, plaintiff testified that his March 28, 2019, meeting with Chief of Staff Lawrence lasted “45 minutes . . . Maybe 30 minutes. Maybe not even 30 minutes.” Doc. 38-18 at 16 (Pl. Dep. 62:2124). In contrast, paragraph three of plaintiff's second declaration asserts that Chief of Staff Lawrence “did not give [him] any time to decide whether or not to resign. [He] believed that [he] had to make [his] decision during the meeting[.]” Doc. 39-1 at 4 (Pl. Second Decl. ¶ 3). Plaintiff's second declaration controverts his deposition testimony about the length of the meeting. Id.; Doc. 39 at 5.

This change, though subtle, is material. Plaintiff's new declaration undermines defendants' summary judgment argument and influences the court's legal analysis. Defendants' central summary judgment argument-that plaintiff voluntarily resigned-relies on how long the meeting lasted. Defendants argue that plaintiff's deposition testimony demonstrates that Chief of Staff Lawrence didn't coerce plaintiff to resign; he had plenty of time during the meeting to ask questions and discuss alternatives. Doc. 38 at 11. The length of the meeting also matters because it's one element of a test the court uses to determine whether plaintiff voluntarily resigned or was coerced into doing so. Plaintiff's second declaration thus differs-and materially so-from his deposition testimony.

To determine whether the material change to the deposition testimony is a sham, the court applies the three Franks factors. For reasons explained in the following paragraphs, the court concludes that all three factors favor excluding the second declaration's changes to plaintiff's deposition testimony.

First, plaintiff concedes that he was cross-examined during his deposition. Doc. 41-1 at 2.^[2] This factor thus favors excluding the second declaration as a sham.

Second, plaintiff admits that his changes to the deposition testimony aren't based on newly discovered evidence. Id. This factor this favors exclusion, as well.

Third none of the original testimony reflects confusion which the second declaration attempts to rectify. Instead, the changes the second declaration makes to plaintiff's deposition testimony provide new facts that controvert the original testimony. And plaintiff offers no explanation why he didn't provide evidence that Chief of Staff Lawrence “did not give [him] any time to decide whether to resign” in his first declaration or during his deposition. Plaintiff “had every reason to disclose the information earlier, so the last-minute [declaration] should at least explain the failure.” Genberg v. Porter, 882 F.3d 1249, 1263 (...