Douglas County DA responds to disciplinary complaint, says her political speech should have First Amendment protection

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Douglas County District Attorney Suzanne Valdez on Tuesday filed her answer to a pending disciplinary complaint and released a statement saying, in part, that her comments about a judge were “deserving of heightened protections under the First Amendment.”

Much of the complaint focuses on a public conflict between Valdez and Douglas County District Court Chief Judge James McCabria just a couple of months into Valdez’s term over how jury trials would be handled, though the investigation continued long after. The complaint alleged that Valdez “continued to exhibit discourteous conduct and makes personal attacks” toward McCabria even during the disciplinary process.

As of 6:30 p.m. Tuesday, we had not yet received a copy of Valdez’s filed response from either the Office of the Disciplinary Administrator or the DA’s office. We will update this post or publish a new article once we receive the filed answer. (Update, 5:16 p.m. Wednesday, Sept. 6: Here’s the article about the filed answer.)

Valdez was elected in November 2020 and took office Jan. 11, 2021. Amid the COVID-19 pandemic, many long-pending criminal cases needed to go to trial. 

Douglas County District Court employees and other county staff members had come up with a plan to try cases at the Douglas County Fairgrounds, where jurors would be able to safely distance from each other. McCabria announced March 18, 2021 that jury trials would resume the following month, saying that the court had consulted with all stakeholders about the plan.

Valdez, however, has contended that she was not “consulted” about the plan, but rather “told” what was going to happen in meetings that February and March. She stood by that assertion in her Tuesday statement. (Read more of the backstory on the March 2021 dispute in this article and on the complaint in this Aug. 19 article.)

In her statement Tuesday, Valdez wrote that “The district court’s own failure to include me in discussions and decisions” about how to conduct jury trials amid COVID-19 formed the basis for the complaint McCabria initiated roughly 2 1/2 years ago. She wrote that much was different at the time: much of the public was not yet vaccinated, and the transition from the 16-year administration of previous DA Charles Branson “added further stress and confusion to an already unprecedented and tense situation,” she wrote.

On March 23, 2021, Valdez reposted a news release that her office had sent out on her personal Facebook page, captioned “Women of the world – be prepared! If you are hardworking, outspoken, honest, AND in a position of authority, the INSECURE MAN will try to tear you down. Not me, says I!”

“While the Facebook post obviously offended Judge McCabria, it also empowered many women – who themselves feel that as females in high level professional or political positions – are not invited to the table to be part of discussion and decision-making meetings and whose voices and opinions are not heard, nor considered,” Valdez wrote in her statement Tuesday.

“Thus, the speech at issue in this Formal Complaint was extra-judicial and in my role as District Attorney. It is political speech deserving of heightened protections under the First Amendment, and it occurred during the discreet time period of March 18-23, 2021,” she wrote.

Valdez said other allegations in the complaint “reflect mere dissatisfaction with my unconventional, but much desired, approach to the role of prosecution.”

“Disagreement with my outspoken nature, the independence of my office, and the importance of checks and balances within the criminal justice system say less about my ethical barometer and more about the district court’s reluctance to change and transparency,” Valdez wrote in her statement. “It appears that any challenge or questioning of the district court is an insult, even in a time of calls for heightened transparency and accountability in our public institutions.”

The complaint alleges that Valdez had also sent McCabria a text back in March 2021, “You should be ashamed of yourself. We were TOLD, not consulted. The only reason you commented is because I am a Hispanic female (in) a position of power. … I will shine the light of truth on everything.”

“Throughout these proceedings, I have been accused of ‘pulling the race card’ and ‘pulling the woman card,’” Valdez wrote. “These accusations are either naïve oversimplifications or something far more sinister.”

She wrote that she identifies as a Hispanic woman and takes a great deal of pride in her heritage. Growing up, and even into her adult years, she did not see people who looked like her in positions of power, she wrote.

“I attain a position of power, only to be denied a seat at the table and downright silenced. This is the lens through which I view the world, and I make this clear to others when I am speaking,” Valdez wrote. “Our lived experience shapes our perspective, and I am simply letting people know where I am coming from. To the extent that anyone feels offended by my perspective or my tone, then this only underscores the need for open lines of communication and honest discourse without fear of repercussions.”

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The formal complaint also alleges that Valdez’s behind-the-scenes response to the conflict essentially created a toxic work environment for employees and says many employees left the office “in part or in whole, because of the Respondent’s unprofessional conduct,” among other allegations.

Valdez wrote that she disagrees with that. The former employees “were not amenable to the type of change the community commanded when I was elected,” she wrote.

“In the weeks that followed my swearing in, it became clear that these employees did not actually want to work for me. Rather, they wished to continue on as they had for so many years – no longer an option after the community showed up on election day and mandated change,” Valdez wrote. “With new administrations come change, as we see across nearly every elected office. I prefer competent, willing employees who share the core values of my administration.”

She wrote that she and Deputy DA Joshua Seiden had made multiple requests of the court to sit down and work through disagreements, suggesting a neutral third party, mediator or restorative justice facilitator, but the court has declined each time.

Stephen Angermayer, the Pittsburg, Kansas-based attorney representing Valdez for the disciplinary complaint, has been paid $11,183 through Friday, according to information from Cheryl Cadue, spokesperson for the DA’s office.

If the disciplinary hearings proceed as scheduled, a panel will listen to evidence from both sides and issue a report that will include a recommendation regarding discipline. The panel will include Stacy L. Ortega, Gaye Tibbets and Sylvia B. Penner. All are attorneys with Wichita-based firms, according to the complaint. Read about the witnesses and exhibits the special prosecutor intends to use at this link.

The case is set for a prehearing conference at 9:30 a.m. Tuesday, Sept. 19, which will be held virtually by Zoom. The hearing will be open to the public. Requests to attend the Zoom hearing can be emailed to Krystal Vokins, counsel to the Kansas Board for Discipline of Attorneys, at vokinsk@kscourts.org or by calling her at 785-435-8200. 

The formal hearing is set to begin at 9:30 a.m. Oct. 12 and 13. It will also be open to the public, but whether it will be held in person or virtually will be decided during the prehearing conference. 

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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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