State Secretary of State Stuck with CLE Sanction

Today was a terrible, no-good, very bad day for Kris Kobach.

|The Volokh Conspiracy |


It's not every day that a federal court imposes Continuing Legal Education requirements as a sanction to attorneys in a case, but that is what happened in to Kansas Secretary of State Kris Kobach in Fish v. Kobach.

Fish concerned a challenge to provisions of the Kansas Safe and Fair Elections (SAFE) Act, in particular a requirement that individuals provide documentary proof of citizenship ("DPOC") when registering to vote. In an extensive opinion, Judge Julie Robinson concluded portions of the SAFE Act are unconstitutional and violate the National Voter Registration Act. In the process, Judge Robinson rejected some of the expert evidence submitted by Kobach in defense of the law and had harsh words for Kansas' Secretary of State. Rick Hasen has more on the case at Election Law Blog here.

Of particular note, Judge Robinson sanctioned SOS Kobach for failing to disclose relevant evidence prior to trial. She wrote:

The disclosure violations set forth above document a pattern and practice by Defendant of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial. The Court ruled on each disclosure issue as it arose, but given the repeated instances involved, and the fact that Defendant resisted the Court's rulings by continuing to try to introduce such evidence after exclusion, the Court finds that further sanctions are appropriate under Rule 37(c)(1), which permits, in addition to exclusion of the evidence, "other appropriate sanctions." It is not clear to the Court whether Defendant repeatedly failed to meet his disclosure obligations intentionally or due to his unfamiliarity with the federal rules. Therefore, the Court finds that an additional sanction is appropriate in the form of Continuing Legal Education. Defendant chose to represent his own office in this matter, and as such, had a duty to familiarize himself with the governing rules of procedure, and to ensure as the lead attorney on this case that his discovery obligations were satisfied despite his many duties as a busy public servant. The Court therefore imposes a CLE requirement of 6 hours for the 2018-2019 reporting year in addition to any other CLE education required by his law license. These 6 additional hours must pertain to federal or Kansas civil rules of procedure or evidence. Defendant shall file a certification with this Court before the end of the reporting period on June 30, 2019, certifying that this CLE requirement has been met.

Such a sanction is quite remarkable—particularly when imposed on a government official.

UPDATE: As noted in the comments, this is not the first time SOS Kobach has been sanctioned. Last year Kobach was fined for "misleading" a federal court. Earlier this year, Kobach was also held in contempt of court for failing to comply with a court order.