Stegall Press Release 2009-07-21

PRESS RELEASE For Immediate Release July 21, 2009 - 1:00 PM Contact - Ryan Kriegshauser - 816-256-3181

Van Meteren to Seek Damages from Ethics Commission Topeka - Caleb Stegall, lead attorney for Topeka businessman, Kris Van Meteren, faxed a formal demand letter [see following 4 pages] to the Kansas Governmental Ethics Commission yesterday. The letter is Van Meteren’s formal request to be reimbursed by the Commission for out-of-pocket costs incurred when he was forced to defend himself against a complaint filed by Commission staff. That complaint alleged that he had illegally spoken to two reporters about a separate complaint he had filed last September against Senator Dwayne Umbarger (R-Thayer). The complaint filed against Van Meteren, which ultimately resulted in the Commission fining him $7,500, was the first and only such complaint to be filed against a private citizen under an obscure 1974 law. Throughout the complaint and hearing process, Van Meteren continued to assert that speaking publicly about his complaint against Umbarger amounted to constitutionally protected free political speech. The Commission refused to accept Van Meteren’s defense and dismissed the case law cited by Van Meteren’s legal team. Only after Van Meteren filed an appeal in Shawnee County District Court did the Ethics Commission seek to determine if his claims of constitutional protection had merit. Kansas Attorney General Steve Six was retained by the Commission for the appeals process. Shortly after taking the case, Six advised the Commission that they had acted illegally and had, in fact, violated Van Meteren’s right to free speech. As a result, the Commission was forced to reverse itself, vacating the order and fine that it had levied against Van Meteren. This letter is Van Meteren’s attempt to seek reimbursement for the legal expenses he incurred while defending himself against the Commission’s unconstitutional actions. It spells out some of the egregious actions of the Commission that led to their order being overturned. Attorney Ryan Kriegshauser, who represented Van Meteren during the hearing process, will address the Commission at 1:00 PM tomorrow, July 22, 2009, regarding the details of this demand letter. He is expected to expand on the damaging aspects of the Commission’s decision. Members of the press and public with an interest in free speech are encouraged to attend. The meeting will be held in the Board of Agriculture Hearing Room on the 4th Floor of the Mills Building located at 109 SW 9th Street in downtown Topeka (one floor down from the Ethics Commission office). ###

July 20, 2009 Sabrina Standifer VIA FAX & HAND DELIVERY (785) 296-2548 Kansas Governmental Ethics Commission 109 SW 9th, Suite 504 Topeka, KS 66612 Re:

Kris Van Meteren

Dear Ms. Standifer & Commissioners: Please consider this letter as my client Kris Van Meteren’s formal demand for payment from the Kansas Governmental Ethics Commission to compensate him for actual damages suffered at the Commission’s hands for its unconstitutional and illegal prosecution of him in Complaint No. 424. This letter is addressed directly to the Commissioners at the behest and with the permission of Commission counsel Judy Moler, who is copied on this correspondence. The facts of this matter are as follows. On September 15, 2008, Mr. Van Meteren filed a complaint against Senator Dwayne Umbarger with the Kansas Governmental Ethics Commission. While the Commission appeared uninterested in the clear errors in Senator Umbarger’s campaign finance reports (errors which were serendipitously discovered and remedied by Senator Umbarger immediately after they were initially brought to the Commission staff’s attention), the Commission was anxious to prosecute my client for exercising his First Amendment rights to freely discuss this matter of clear public policy implication with the press. The Commission filed its own complaint against Mr. Van Meteren (Complaint No. 424) on October 22, 2008, accusing him of speaking to the press and alleging that such speech was criminal in nature. See Findings of Fact, ¶ 8 (Feb. 18, 2009). Mr. Van Meteren never attempted to hide the fact that he had discussed this matter with the press. In fact, Mr. Van Meteren positively asserted his First Amendment rights to do so. The Commission brushed aside such constitutional rights and pursued its prosecution with vigor, going so far as to harass members of the press and obtain sworn statements from reporters. Mr. Van Meteren was forced to retain counsel who subsequently filed a Motion to Dismiss and argued it before the Commission. The Motion to Dismiss clearly set forth the governing law in this matter: “There is little to no argument that confidentiality Caleb Stegall PRINCIPAL

Robert A. Fox OF COUNSEL

785.597.5777 • Fax: 785.597.5766 504 Plaza Drive • Perry, KS 66073 [email protected] • www.steglaw.com

provisions of this sort are content-based restrictions on free speech. … Content-based restrictions are presumptively invalid.” See Motion to Dismiss at 3. Moreover, the Motion to Dismiss provided to the Commission the recent 10th Circuit Court of Appeals case of Guttman v. Widman which clearly held that any restriction or penalty the Commission sought to impose upon Mr. Van Meteren’s speech would be unconstitutional. At oral argument on Mr. Van Meteren’s motion, the Commission was openly disdainful of the constitutional protections afforded free speech. This inexplicable disdain was carried over to the Commission’s subsequent Order. In its Order of February 18, 2009, the Commission held that Mr. Van Meteren’s political speech was illegal and subjected him to a civil fine imposed of $7,500 and, as Ms. Williams made certain to mention to Mr. Carpenter of the Topeka Capital Journal, possible criminal sanction as well. The Commission entered this finding with nary a backwards glace at the Constitution or what is perhaps its most cherished right—the right to free political speech. This alone represents a staggering display of hubris on the part of the Commission. The Commission justified its decision by reference to one case—and did not discuss a single other case on this most important of rights—Nichols v. Kansas Governmental Ethics Commission. This case did not even deal with the issue before the Commission, but rather with the propriety of sealing a record. As a result of this decision, Mr. Van Meteren was forced to expend further resources to file his judicial appeal of the Commission’s blatantly unconstitutional order. That appeal was filed, and in response, apparently for the first time, the Commission sought representation by the Kansas Attorney General. This fact, too, demonstrates the cavalier attitude and arrogance with which the Commission had, to this point, handled this matter. In spite of the claims by Mr. Van Meteren and his legal counsel from the earliest days of this case that his right to free speech was in danger of being infringed and in spite of the fact that the Commission announced that it was taking the extraordinary step of allowing itself an extra month to consider his claims, apparently at no time in the five months leading up to the issuance of the order fining Mr. Van Meteren did the Commission seek to determine, either from the Attorney General or any other constitutional authority, whether his claims of constitutional protection had merit. This is appalling, especially in light of the fact that a majority of the Commissioners are attorneys.

Caleb Stegall PRINCIPAL

Robert A. Fox OF COUNSEL

785.597.5777 • Fax: 785.597.5766 504 Plaza Drive • Perry, KS 66073 [email protected] • www.steglaw.com

Clearly the Commission had had Mr. Van Meteren in its sights and had intended all along to impose its penalty, regardless of the actual law. It was not until a legal challenge was mounted in a court of law that the Commission bothered to actually seek sufficient counsel from the Kansas Attorney General. The Attorney General proceeded to tell the Commission, in no uncertain terms, that it had acted illegally, advancing exactly the same argument Mr. Van Meteren had made earlier, but which the Commission had ignored. The Attorney General stated in its letter of May 13, 2009, that “[T]hese statutes … as applied to complaining parties … violate the First Amendment and cannot be enforced against those who file complaints with the Commission.” See Attorney General Letter at 2. After a review of the state of the law regarding such confidentiality rules showing that courts routinely have held the application of such rules against complaining parties to be unconstitutional, the Attorney General then dismissed the Commission’s reliance on the Nichols case as, essentially, a mere pretext used by the Commission to reach its desired result—in complete contravention of the constitutionally protected rights of Mr. Van Meteren. As a result of this letter from the Attorney General, the Commission vacated its Feburary 18, 2009 Order. See Commission Order (May 13, 2009). It would be rare to find a clearer or more obvious example of a government agency—after having an opportunity to deliberate and after being fully informed of the law—blatantly violating a citizen’s rights to free political speech. The Commission’s actions in this case are inexcusable. Moreover, they subject the Commission and each Commissioner, both in his official and individual capacity, to liability to Mr. Van Meteren for damages and attorney fees flowing out of the violation of his constitutionally protected rights in a § 1983 lawsuit in federal court.1 Mr. Van Meteren intends to pursue this course of action, however, it is our intent to allow the Commission to do the right thing before proceeding with litigation. The Commission should immediately admit its fault and make Mr. Van Meteren whole, at least with respect to his direct and measurable costs associated with clearing his name. (This will not, and cannot, compensate him for the harm to his reputation that this Commission has caused, however, Mr. Van Meteren is willing to forego such claims in an effort to put this unseemly episode behind him.) Those costs amount to the nearly $17,500 in attorney fees which Mr. Van Meteren has incurred. 1

The Commission and commissioners may additionally be subject to liability in state court for malicious prosecution. See K.S.A. § 25-4162 and § 46-261. Caleb Stegall PRINCIPAL

Robert A. Fox OF COUNSEL

785.597.5777 • Fax: 785.597.5766 504 Plaza Drive • Perry, KS 66073 [email protected] • www.steglaw.com

There is no longer any debate about what happened in this case. Mr. Van Meteren spoke out publicly about the wrongdoing of a powerful politician and the Commission sought to punish him for it, ignoring the Constitution along the way. Nor is there any debate over the law in this case. The acts of the Commission were unconstitutional, which is to say, they were against the law. The law was violated in this matter, and the Commission was the violator. The Commission was perfectly willing to impose substantial fines on Mr. Van Meteren when it thought it could get away with it. How much more, now, should the Commission take responsibility for its own violations of the law? As such, Mr. Van Meteren formally submits his claim and demand for payment from the Commission in the amount of $17,500 to recompense him for the actual, direct, and foreseeable damages he has tangibly suffered as a result of the Commission’s illegal actions. This offer of settlement shall remain open for 30 days.

Very Truly Yours, THE STEGALL LAW FIRM

Caleb Stegall

Cc:

Judy Moler Kris Van Meteren

Caleb Stegall PRINCIPAL

Robert A. Fox OF COUNSEL

785.597.5777 • Fax: 785.597.5766 504 Plaza Drive • Perry, KS 66073 [email protected] • www.steglaw.com