Hoedel v. Kirk

480 F.Supp.3d 1218

Cindy HOEDEL, et al., Plaintiffs,

v.Dustin KIRK, et al., Defendants.

Case No. 2:19-cv-02443-HLT-JPO

United States District Court, D. Kansas.

Signed August 20, 2020

Zal Kotval Shroff, Lauren Bonds, American Civil Liberties Union of Kansas, Overland Park, KS, for Plaintiffs.

David R. Cooper, Seth Aaron Lowry, Fisher, Patterson, Sayler & Smith, LLP, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

Plaintiffs Cindy Hoedel and Scott Yeargain sued Defendants Dustin Kirk, Shari Feist Albrecht, Susan Duffy, Dwight Keen, and Jay Emler for First Amendment retaliation. Albrecht, Duffy, Keen, and Emler—all current or former Commissioners on the Kansas Corporation Commission ("KCC")—move to dismiss. Doc. 40.¹ Specifically, Albrecht, Keen, and Emler, sued in their individual capacity, argue they are entitled to absolute or qualified immunity. Albrecht and Keen, as well as Duffy, are also sued in their official capacity, and they argue Plaintiffs are not entitled to any prospective injunctive relief—the only relief permitted under the Eleventh Amendment.

The Court finds that Albrecht, Keen, and Emler are entitled to absolute immunity on the individual-capacity claims because the conduct alleged was related to their quasi-judicial duties. Even if absolute immunity did not apply, qualified immunity would shield them from individual liability. The official-capacity claims against Albrecht, Keen, and Duffy are likewise dismissed because Plaintiffs have failed to allege that they have standing to pursue prospective injunctive relief based on ongoing constitutional violations.

I. BACKGROUND²

The KCC is a state agency responsible for regulating oil and gas drilling in Kansas, including issuing permits for injection wells. Doc. 31 at ¶ 18. When an oil company seeks an injection-well permit, the surrounding landowners and the general public are given notice. Id. at ¶ 19. An interested party may protest the application if it believes the proposed injection well will damage oil, gas, or water resources. Id.

The KCC holds hearings when a protest is filed. Id. Prior to those hearings, the KCC convenes a prehearing conference that is presided over by KCC staff attorneys. Id. at ¶ 20. The purpose of a prehearing conference is to schedule prehearing deadlines, consolidate protests, and identify witnesses. Id. At a prehearing conference, the oil company can move to dismiss protesters, and protesters can file briefs defending their involvement. Id. at ¶ 21. Protesters can also file prewritten testimony and request discovery. Id. KCC Commissioners preside over the injection-well hearings and issue written findings and recommendations regarding protester standing and whether to approve or deny the injection-well application. Id. at ¶ 22.

Albrecht, Keen, and Duffy are current Commissioners for the KCC. Id. at ¶¶ 14-16. Emler previously served as a Commissioner from 2014 through 2019. Id. at ¶ 17. Kirk was at all relevant times Deputy General Counsel for the KCC. Id. at ¶ 13.

Hoedel is a Kansas resident who has filed several protests with the KCC to oppose injection-well sites near her home. Id. at ¶ 11. She has participated in prehearing conferences presided over by Kirk and appeared at injection-well hearings presided over by the Commissioners. Id. at ¶¶ 24-25. In 2017 and 2018, Hoedel's activity before the KCC received consistent press coverage, including her discovery that the KCC had improperly issued certain permits. Id. at ¶ 26. She has also coordinated with other citizens to protest injection-well applications across Kansas. Id. at ¶ 24.

In 2018, Hoedel filed a protest against two injection-well applications in Barton County. Id. at ¶ 27. Kirk was the attorney assigned to preside over the prehearing conferences for both applications. Id. In May 2018, Hoedel sent emails to other protesters on the Barton County applications, telling them they would need to join the prehearing conference or else risk being removed from the docket. Id. at ¶ 28. Hoedel also told the other protesters that she typically pre-files testimony and offered a sample. Id. She copied Kirk on both emails. Id. Kirk later raised concerns with each of the Commissioners that Hoedel was coordinating with other protesters. Id. at ¶ 29. But during the prehearing conference, Kirk never expressed concerns about Hoedel's actions, and at no point did Hoedel represent that she was speaking on behalf of any of the other protesters. Id. at ¶ 31.

Yeargain is also a Kansas resident who has protested several injection-well applications. Id. at ¶¶ 12, 33. Yeargain was one of several protesters on a different injection-well application in May 2018 where Kirk was the presiding officer for the prehearing conference. Id. at ¶ 34. Two other protesters, Ken and Susan Peterson, were going to be out of town when the prehearing conference occurred. Id. at ¶ 35. Peterson emailed Kirk and asked whether they could designate Yeargain to relay their dates of availability during the prehearing conference. Id. at ¶¶ 35-36. Kirk spoke with the Commissioners about Yeargain assisting the Petersons, and later told Peterson that Yeargain is not a licensed attorney and could not represent other individuals at the preconference hearing. Id. at ¶ 38.

On May 14, 2018, Kirk emailed a contact at the Kansas Attorney General's office. The emailed stated:

I apologize if I am starting in the wrong place here but I have your contact information and you have been more than helpful to our agency in the past. I have a matter involving consumer protection that has risen in the context of our agency's quasi-judicial proceedings. We know that the Attorney General would have jurisdiction but we were unsure in how to handle the matter currently. It happens to be somewhat of a hot topic. I would like to speak with an attorney on this and I didn't know if the normal consumer protection hotline would get me to where I needed or not.

Please let me know when you may have a moment to speak with me or please direct to someone who I may need to talk with on this if not you. I greatly appreciate your time.

Doc. 41-8 at 2.³ Kirk later spoke with someone at the Kansas Attorney General's office and followed up in an email on June 12, attaching the Hoedel and Peterson emails as evidence of the unauthorized practice of law. Doc. 31 at ¶¶ 41, 51. That email stated:

It was nice speaking with you yesterday. Please see attached a few e-mails and another pleading that we have received that allude to the possible violation regarding the unauthorized practice of law. I realize that this is pretty minimal to go on at this point but we do feel that the relevant conversations demonstrate that a non-licensed individual is drafting or sharing legal pleadings for filing and use before the Commission in quasi-judicial proceedings.

We certainly may have additional information that may be relevant and we can help garner more KCC pleadings and e-mails on these particular dockets should that be helpful. These pro se litigants have also at times attempted to represent their respective groups in proceedings before the Commission, however, we have issued ruling attempting to quash that practice.

I am happy to share more information or share with you the intricacies of these cases. I can also draft up a more formal complaint if you'd rather have something of that nature instead of this e-mail and a few documents. Please advise on the next steps.

Doc. 41-10 at 2.⁴ Both Kirk's May 14 and June 12 emails were sent from his KCC email address and both used the word "we," presumably referring to the KCC or the Commissioners. Id. at ¶¶ 50, 52-53.

The Kansas Attorney General's office notified both Hoedel and Yeargain that they were under investigation. Id. at ¶ 58. Hoedel was asked to provide a response to the allegations, though the Kansas Attorney General's office later closed the investigation. Id. at ¶¶ 59-60. Hoedel claims the investigation caused her significant anxiety and distress, and adversely impacted her bid for a seat on the Chase County Commission. Id. at ¶ 60. Yeargain was never notified that the investigation into his activities was closed, and as far as he knows, it is still ongoing. Id. at ¶ 62. Yeargain has experienced mental distress as a result. Id. at ¶ 63. Both Hoedel and Yeargain have "ceased or curtailed their coordinated advocacy activities" in front of the KCC out of fear that they would draw additional complaints for the unauthorized practice of law. Id. at ¶ 65. Hoedel is fearful that the KCC will report her activities in the future. Id. at ¶ 70. Yeargain believes he has been further targeted by the KCC by being placed on a "no-contact list" for KCC staff. Id. at ¶ 71.

The KCC regularly encounters individuals without law licenses attempting to appear on behalf of injection-well applicants in KCC proceedings. Id. at ¶ 42. Although staff counsel and prehearing officers have objected to those unlicensed individuals appearing, none of them have been reported. Id. at ¶¶ 43-44. Non-attorney protesters have also tried to appear on each other's behalf, but no complaints were filed with the Kansas Attorney General's office. Id. at ¶¶ 45-46.

The amended complaint alleges one count of retaliation in response to Plaintiffs’ First Amendment activity. Id. at ¶¶ 72-77. Plaintiffs sue Albrecht and Keen in both their official and individual capacities, Duffy in her official capacity only, and Emler in his individual capacity only. See generally id.⁵ Plaintiffs seek damages and injunctive relief.

II. STANDARD

To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible if it is accompanied by...