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Summary. Recently there have been a number of court battles
in the Kansas Supreme Court between George Tiller and Attorney General
Paul Morrison, and Planned Parenthood and Johnson County District
Attorney Phill Kline. However, one secret case against Phill Kline
was brought on June 6, 2007 and has barely been mentioned by the Kansas
press. Until a Nov 20, 2007 Topeka Capital-Journal article
(see below), I was confused by all the court actions and didn't realize
this was separate, secret case.
One would think that KCTV5 might have discovered Kline's appearances
in the Kansas Supreme Court while they were tailing him over the last
few months. How didn't KCTV5 find this story that may have more
future implications for Kline than KCTV5's
recent harassment and hit piece against Kline?
After the Kansas City Star announced the secret law suit
against Kline on July 6, 2007, Morrison asked the Supreme Court on July
20, 2007 if he could enter the case against Kline. This was only a
few weeks after Morrison's political blasting of Kline's ethics in a
press conference about charges filed against George Tiller on June 28,
2007. It's unclear how Morrison knew enough to ask the Supreme
Court to enter the case when the case was under seal. A summary of
excerpts from several newspaper stories from June through November are
shown below.
The Nov 20, 2007 Topeka Capital Journal mentions a particular
hearing in the Supreme Court that has only happened "two or three
times" in the last 25 years, and only one newspaper reported that
story? Shawnee County District Judge Richard Anderson and the
former KBI director were called into the court room where Kline and
Planned Parenthood attorney Pedro Irigonegaray apparently were in a
verbal duel in front of the Supreme Court. Why was the judge
there? What about the KBI director? Why is the case under
seal? Why isn't the public allowed to know what is going on in the
Supreme Court? When will more hearings occur, and when might any
action be taken? When will the secrecy stop?
In an earlier "Alpha-Beta"
legal case from Feb 2006, the Kansas Supreme Court said this about Kline:
"We conclude that, despite the attorney general's initial
defiant tone, he should not be held in contempt at this
time." With this as background in a somewhat similar
case, and the Supreme Court's attitude then, will Phill Kline survive
this legal/political battle with the Supreme Court in this secret case?
Details. This "secret" case hasn't received much press coverage, but a
recent Topeka Capital-Journal article highlighted several unusual
aspects of the case.
Testimony was taken Monday during a rare
Kansas Supreme Court hearing in the lawsuit filed by
Overland Park's Planned Parenthood against Johnson County District
Attorney Phill Kline. ...
[Supreme Court spokesman] Keefover said he has seen a similar
oral testimony hearing at the Supreme Court only "two
to three times in my 25 years with the court."
The case has been
sealed since June, and no reporters were allowed inside the
courtroom on Monday.
Kline and Planned Parenthood attorney Pedro Irigonegaray were in
the room from 9 a.m. to 5 p.m. Shawnee County District
Court Judge Richard Anderson and former Kansas Bureau of Investigation
director Larry Welch also stood outside the room before being called
inside.
No one would comment on the case or who was testifying.
...
On June 6, Planned Parenthood filed its lawsuit against
Kline, and the case was sealed
from public view a day later.
A Newsbank search of the
Kansas City Star and Kansas Newspapers reveals no
press reports in June 2007 of this law suite Planned Parenthood filed on
June 6 against Phill Kline. Why all the secrecy
about this case? A newspaper search for related stories revealed this from June
2007:
- June 12, 2007, KC Star, "Diagnoses questioned in
Kansas abortions - A psychiatrist says medical records do not
support the need for late-term procedures."
A psychiatrist who reviewed medical files for Phill Kline's
investigation of late-term abortions says the files did not back up
the diagnoses used to justify the procedures. ...
An attorney for Wichita abortion provider George Tiller and a
spokesman for current Attorney General Paul Morrison criticized
McHugh for speaking out about an investigation
that is under court seal. ...
Morrison is continuing the investigation and will make an
announcement on the case this month, spokeswoman Ashley Anstaett
said. Morrison will file charges if they are warranted, she said.
She criticized McHugh for talking about the case publicly.
"Discussing information from an ongoing investigation
shows an obvious disrespect for that investigation," she said.
What case under seal is being discussed here on June 12 by The
Star? The June 6th case had not been revealed at that point in
time? How would Tiller's Attorney and Attorney General Morrison
know about a Planned Parenthood case that was under seal? Or are
there several cases under seal?
Other related articles from June 2007:
Some abortion opponents believe the mailings were crucial
because they bolstered Morrison's campaign messages about Kline.
Instead of citing legal or political differences of opinion, Morrison
attacked Kline in the press as he dropped charges against Planned
Parenthood and Tiller:
Attorney General Paul Morrison's
investigation of the state's highest-profile abortion provider
revealed former Attorney General Phill Kline may have acted
unethically to advance criminal charges against Dr. George
Tiller, Morrison spokeswoman Ashley Anstaett said Wednesday.
Fifteen misdemeanor counts brought by then-Attorney General
Kline in December alleging misconduct by Tiller in reporting
late-term abortions were based on incomplete
and misleading information, Anstaett said. ...
Anstaett said Morrison's analysis showed the 15 abortion
reporting charges raised by Kline were "completely without
merit." ...
Anstaett said a six-month investigation by Morrison indicated Kline
submitted a flawed affidavit to Sedgwick County District
Court summarizing evidence against Tiller. ...
"It is hard to
imagine a competent attorney making that same mistake four
times," Anstaett said.
Perhaps more significantly, she said, the probable-cause
affidavit submitted by Kline to a Sedgwick County judge left out
information that might have been favorable to Tiller in evaluating
the validity of the 11 other reporting counts.
"It is unethical
to omit exculpatory evidence from an affidavit being considered by a
judge," Anstaett said.
- June 28, 2007, KAKE Video. Instead of immediately
talking about charges he had filed against George Tiller, Paul
Morrison started his news conference with a number of policy
statements about the Attorney General's office, which were intended
to be insulting to Kline: "For the last several months
we've spent a great deal of time ... trying -- very hard -- to
refocus the priorities of this office. And that's involved a
whole lot of things." These political statements were
irrelevant to the charges Morrison announced against Tiller.
Morrison claimed his office went on a "seven week equivalent of
a scavenger hunt" looking for the medical records.
Morrison spent considerable time in a taking political swipes at
Kline, instead of focusing on the charges he was
announcing.
Morrison claimed that Kline as Attorney General had sent the records
to himself as Johnson County DA, but failed to mention the approvals
needed from Judge Anderson for that transfer. "Totally
on his own -- no oversight" But what about Judge
Anderson? Didn't Judge Anderson approve the transfer?
"Our first priority was to get those files .. and
the medical records and to lock 'em down..." but Morrison's
statements were misleading when he failed to mention that only
redacted records with no patient identifying information was
involved. "Throughout the campaign last year we talked a lot
about privacy of these women ..." But Morrison failed to
mention the records he was discussing had no personal information in
them. [See "Alpha
Medical Clinic (Tiller) and Beta Medical Clinic (Planned
Parenthood)" case, No. 93,383 from Feb 2006 for proof that not
even Judge Anderson knew the identity of the women].
"We've seen them discussed on the blogs. We've seen them
on various web sites. We heard them discussed on the Bill O'Reilly
show. And those were our fears. ..." [It's unclear what
blogs and web sites Morrison is referring to here.]
Nearly three-fourths of the press conference was used to attack
Kline, before Morrison focused on the charges he was
filing.
[Late term abortion] "is a highly restrictive procedure under
Kansas Law." Morrison said Tiller had not lied on the
KDHE forms, which were what four of the original charges were
about. Morrisons explained "for some reason" the
back side of one report was copied onto the front side of another
report. "Mr.
Kline attributed that to a copying error, not once, not twice, not
three times, but on all four counts. To my way of thinking, at
best, that is gross incompetence, and at worst, manufacturing
evidence. Needless to say those four counts were completely
bogus and untrue. "
Morrison then claimed the 11 charges about citing the statutory
language as the reason for a late term abortion had been valid since
Tiller had been given guidance about that from KDHE and Kline failed
to mention that exculpatory evidence. "There's
an ethical requirement that you put the evidence that supports your
case, as well as the evidence that doesn't support your case..."
and Kline failed to do that according to Morrison.
"I can't help but believe that if the judge had known about that
perhaps he wouldn't have even signed off" on the
charges.
Later a KAKE newswoman quoted Kline's spokesperson, Brian Burgess as
saying "All
of Morrison's findings are false. And accused Morrison of
playing politics." On the phone Burgess said this about
Morrison: "Everything he's saying right now sounds like it's
coming from the defense law firm Tiller, Monnat and Morrison."
The secret June 6 law suit was not reported by the press in June
2007, but apparently the plaintiff wanted the public to know about the
"secret" case, which became public in July 2007, courtesy of
the Kansas City Star:
- July 6, 2007, KC Star, "Planned Parenthood files
legal petition against Kline" [article no longer online]
A Planned Parenthood clinic in Overland Park has filed a
petition with the Kansas Supreme Court against Johnson County
District Attorney Phill Kline.
The petition for a writ
of mandamus has been sealed by the high court, so no
information about it is available. A petition
of that nature seeks to compel a person to do something, said
Peter Brownlie, Planned Parenthood's chief executive officer.
On Thursday, Brownlie
confirmed that the petition was filed June 6 by Comprehensive
Health of Planned Parenthood of Kansas and Mid-Missouri. But he said
he could not talk about it. Kline could not be reached for comment.
Along with the petition, Planned
Parenthood asked if the case should proceed under seal. The
court ordered it sealed the next day.
The court file states that a response from Kline is due by
July 12.
- July 6, 2007, Newton Kansan, "Organization
sues Kline before Supreme Court" [this
article is still online].
[The Wichita Eagle's version of this story, "Planned
Parenthood sues Phill Kline," is no longer online.]
Court records said the lawsuit and other documents from Planned
Parenthood of Kansas and Mid-Missouri are under
seal, meaning no details were available about why the group is suing
Kline, now the Johnson County district attorney.
...
However, during a news
conference last week, Brownlie said: "We don't believe
that Mr. Kline has a right to any of the records in this case and had
no right since he left the attorney general's office, and all I can
say at this point is that we are pursuing all appropriate legal
remedies."
Supreme Court records
said the lawsuit is a request for the court to force a public official
to do his official duty. The state constitution says such cases
are filed with the high court, rather than a district court.
Records said Planned
Parenthood filed the case June 6, along with a memo in support of its
legal position and a memo asking whether the case should go forward
under seal. The Supreme Court sealed the records the next day.
On June 22, the court told Kline he had until July 12 to
respond. Four days after the deadline was set, Morrison sent his
one-page letter to Irigonegaray.
Planned Parenthood wanted the Supreme Court proceedings to be secret,
but then leaked information to the Kansas City Star (The
Star
is a Planned Parenthood 2006 PPFA "Maggie Award" winning
newspaper) about the secret case so they would publish an article
about it? If Brownlie wanted the case to be secret, why did he
mention it to the press? Why does Planned Parenthood, as a
possible defendant in a then pending court action. get such a privileged
response from the Kansas Supreme Court?
The Star lead the reporting of Morrison joining the secret
case against Kline:
- July 20, 2007, KC Star, "Morrison files motion in
dispute between clinic and Kline" [article is no longer online]
TOPEKA Attorney General Paul Morrison has filed a motion to
intervene in a legal dispute between a Planned Parenthood clinic and
Johnson County District Attorney Phill Kline. ...
The case was sealed by
the Supreme Court, so no information about the contents of the
petition, or Morrison's filing, is available. All parties
involved declined to comment.
TOPEKA The Kansas Supreme Court this week granted Attorney General
Paul Morrison's request to intervene in a legal fight between Planned
Parenthood and Johnson County District Attorney Phill Kline. ...
Records in the case were
sealed by the Supreme Court, so no information about the contents
of the Planned Parenthood lawsuit, Kline's response or Morrison's
request to intervene is available.
It's widely speculated
that the case is an attempt to force Kline to return the files,
which contain the medical information of 90 women who received abortions
at the Overland Park clinic and George Tiller's Wichita clinic.
...
Peter Brownlie, president of Planned Parenthood of Kansas and
Mid-Missouri, said Morrison's involvement is good news to him.
"Since he's been privy to many of the things that have
happened, it's appropriate that he is involved in this case," he
said.
In a second lawsuit,
Morrison is suing the Shawnee County district judge who oversaw Kline's
investigation. Records in
that case also are sealed, but Morrison's petition could be an
attempt to force the judge to return the files.
If that's true, Kline
said, it would be "unprecedented, bizarre and contrary to the
responsibilities of a prosecutor."
Morrison spokeswoman Ashley
Anstaett wouldn't comment on the details of either lawsuit. She
did say that because of the court seal, Morrison's office couldn't
review the Planned Parenthood lawsuit without getting permission to
intervene.
- Oct 18, 2007, Hutchinson News, "Kline files
charges against clinic"
KANSAS CITY, Mo. - Johnson County District Attorney Phill Kline
fired another volley in his battle against abortion providers by filing
more than 100 criminal charges Wednesday against a Planned Parenthood
clinic in Overland Park, Kan. ...
Documents in the case have
been sealed, according to a court order. The
first hearing is set for Nov. 16.
A spokeswoman for Kansas Attorney General Paul Morrison questioned
whether the criminal charges brought by Kline are valid. Morrison
previously reviewed all of the allegations upon which Kline's charges
are based and found no wrongdoing, she said.
"We are skeptical that these charges have any merit," said
spokeswoman Ashley Anstaett,
"and we continue to wonder
how much politics influenced Mr. Kline's decision to file these
charges."
Mary Kay Culp,
executive director of Kansans for Life, the state's largest
anti-abortion group, said the
evidence had to be persuasive for a Johnson County district judge to
find probable cause and move forward with the case. ...
Kline, Morrison and Planned Parenthood are embroiled in a lawsuit
pending before the Kansas Supreme Court. Planned Parenthood sued Kline,
and Morrison later successfully intervened on the state's behalf.
Documents in that case
remain sealed, as well, and neither Kline nor Planned
Parenthood has discussed it.
What can we learn from similar, but earlier court cases?
May 16, 2006, Wichita Eagle, "Judge
Keeps Hearings On Abortion Records Closed --- A Shawnee County Judge
Rules That Hearings About The Attorney General's Fight To Obtain Records
From Abortion Providers Will Stay Closed To The Public," [article is no longer online]
District Judge Richard
Anderson denied a request to open the proceedings to the public,
filed a week ago by the Associated Press and the Kansas Press
Association, which represents newspapers across the state. Anderson
also warned Kline's office and opposing lawyers not to
publicize the case further.
"We're disappointed with Judge Anderson's decision,"
Randy Picht, AP's bureau chief for Kansas and Missouri, said Monday.
"And we're considering our options." ...
"We're disappointed
that secrecy has once again won out against the public's right to be
an active participant in the court system of our state,"
said Doug Anstaett, the press association's executive director.
"We're fighting for democracy in Iraq while at the same time
we're hiding more and more of what government does from our own
citizens." ...
"The court
recognizes there are significant intractable political features
inherent in this proceeding," [Judge] Anderson wrote.
"Neither the investigating law enforcement officer nor any other
person subject to the jurisdiction of the court will be permitted to
turn the investigation into a means to shape public opinion about
abortion policy."
Judge Anderson tried to keep the abortion issue out of the 2006
Attorney General election, but Morrison successfully used the privacy of
medical records as a political issue against Kline (but Morrison
failed to mention the numerous times he himself had used medical records
in court proceedings). Also, Tiller's
ProKanDo PAC and a
secretive non-profit, which has exempted itself from any IRS
reporting, partially funded by the ProKanDo PAC spent a huge
amount of money to defeat Kline.
Both Kline and Judge Anderson had been sued in the Kansas Supreme
Court in the "Alpha
Medical Clinic (Tiller) and Beta Medical Clinic (Planned
Parenthood)" case, No. 93,383 from Feb 2006. That court
case has a quite interesting "Contempt
Proceedings" section, which describes how the Supreme Court
almost held Kline in criminal contempt of court in Feb 2006:
On April 11, 2005,
petitioners filed a Joint Motion for Order Directing Attorney General
Kline To Show Cause Why He Should Not Be Held In Contempt Of Court For
Violating Court Orders Sealing The Record In This Case ...
Indirect contempt may be either criminal or civil. Criminal
contempt proceedings attempt "'"to preserve the power and
vindicate the dignity of the courts and to punish for
disobedience"'" of court orders; criminal
contempt tends to obstruct the administration of justice.
... Civil contempt is failing to do something that the court has ordered
for the benefit of another party to the proceeding, and civil contempt
proceedings are remedial in nature.
... Because this
complaint centers on an alleged violation of court orders, this
qualifies as an allegation of criminal contempt. ..
Kline's initial
responses were troubling ... This too is troubling.
At oral argument before this court, Kline's lawyer, a former
four-term attorney general [Bob Stephan], wisely altered the tone of
Kline's response. He characterized whatever mistakes Kline may have
made as honest ones and said his client was acting in good faith.
...
We conclude that,
despite the attorney general's initial defiant tone, he should not be
held in contempt at this time.
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