Whipple drops lawsuit against Capps, Clendenin and O’Donnell. Here’s why

Wichita Mayor Brandon Whipple has dropped a lawsuit against three former Republican officeholders after the judge overseeing the case scheduled the trial on the week of the mayoral election and refused to change the date.

Whipple plans to refile the lawsuit after Election Day.

Whipple, a former Democratic representative in the Kansas House, filed a lawsuit in Sedgwick County District Court against Michael Capps, a former Kansas representative; James Clendenin, a former Wichita City Council member; and Michael O’Donnell, a former Sedgwick County Commissioner who is now a lobbyist for Evergy and Steven Enterprises, for their roles in a dark-money smear campaign that falsely accused Whipple of sexual harassment at the Statehouse in the final weeks of the 2019 mayoral campaign.

The lawsuit has dragged on for four years without a trial, with numerous delays and continuations. Most recently, Senior Judge Gunnar Sundby, a Republican from Leavenworth County, moved the three-day trial’s start date from early September to Nov. 6, the day before city elections. Whipple is seeking reelection in a competitive race against challenger Lily Wu.

Sundby, in his September order to reschedule, wrote that “there was potentially an inadequate number of jurors summoned on the trial date of Sept. 5 due to several criminal cases going forward” and scheduled it for Nov. 6, despite oral objections from Whipple’s lawyer, former U.S. Attorney for Kansas Randy Rathbun.

Rathbun in turn filed a written motion to continue the trial to a date after the election. If Sundby would not move the trial, Rathbun argued, he should dismiss it without prejudice so the lawsuit could be refiled and overseen by a different judge.

Sundby refused to budge on the trial date and granted Rathbun’s request to dismiss the case. Sundby did not respond to a request for comment on his decision.

That trial date would have likely put Whipple in a courtroom the day before the election and on Election Day and divided his attention between running for election and preparing for trial.

“The last three days of an election is critical because Whipple’s going to be running so hard to try and get out the vote,” Rathbun said. “And so I asked the judge for a continuation and the judge said, ‘Nope, we’re not going to continue it.’ The judge said, ‘It’s time to get this thing over with,’ and I said, ‘Well, if you won’t continue it, I’m going to dismiss it and refile it because that’s the only way I can keep this case going forward, so I’m going to refile it next week — and we’ll get a trial.”

The lawsuit centers on an anonymous campaign video released in October 2019 called “Stop Brandon Whipple and Protect Wichita’s Girls.”

Eagle reporting later found that O’Donnell and Clendenin raised thousands of dollars from supporters of former Mayor Jeff Longwell and laundered the money through a now-defunct sports charity controlled by Capps to hire video producer Matthew Colborn, who paid college-aged actresses $50 each to appear in a video that accused Whipple of making inappropriate comments to them.

They released the video on YouTube and Facebook under an anonymous shell company they set up in New Mexico — called Protect Wichita Girls LLC — to shield their identities.

All three GOP officials lost their positions in the wake of the scandal.

Capps lost reelection in 2020 and was sentenced in May to 27 months in federal prison for fraudulently obtaining hundreds of thousands of dollars in COVID-19 relief aid. He remains out on bond while he appeals the case to the United States Court of Appeals for the Tenth Circuit.

Clendenin and O’Donnell resigned in 2020 under threat of ouster by Sedgwick County District Attorney Marc Bennett after an audio recording revealed the three officials’ plan to frame former Sedgwick County GOP chairman Dalton Glasscock for their campaign against Whipple.

Capps, who was representing himself in the lawsuit, celebrated Sundby’s decision.

“I am pleased Judge Sundby rejected Whipple’s attempt to continue to delay the trial,” Capps said in a written statement to The Eagle. “Whipple, through his counsel, Randy Rathbun, brought this action more than 4 years ago. All three Defendants, O’Donnell, Clendenin and myself have been ready for trial for more than a year and have continued to push to bring this matter before a jury.”

Whipple in September dropped his defamation claim and instead pursued an invasion of privacy and false light claim after the defendants subpoenaed several representatives from the city, the police department and a television news reporter to testify on Whipple’s interaction with a police officer at a 2022 neighborhood cleanup event.

“When Whipple and Rathbun became aware of this, they immediately dismissed their claim of defamation — because they knew Whipple’s own actions were damaging his reputation and would be exposed in open court,” Capps said.

“Whipple filed this action to politically destroy three Republican politicians — he has pursued this case at no cost to himself, as Randy Rathbun claims to be on a contingency basis. Despite the defendants spending tens of thousands of dollars defending this politically motivated lawsuit, despite wasting hundreds of hours of not only defendants’ time, but the time and resources of our strained court system — Whipple felt he should just ‘walk away’ and dismiss,” Capps said.

Clendenin, who was representing himself in the lawsuit, and O’Donnell’s lawyer, Mark Shoenhofer, did not respond to questions from The Eagle.

Whipple said in a phone interview that he is not just walking away from the lawsuit.

“Everyone knows what these guys did,” Whipple said. “They’re caught on audio admitting it, and we’re going to seek justice while also exposing the worst of the worst actions of political insiders.”

Whipple said he’s glad the judge granted the dismissal and he looks forward to refiling the lawsuit after the election.

“It would have been incredibly detrimental to our case and also our campaign,” Whipple said of the Nov. 6 trial date. “I mean, we’ve got to focus on the election and the idea of these guys have been playing legal games with us for over four years now so they can land on Election Day is ridiculous. We’re going to make sure that we follow the process and can devote our whole attention to this trial.”