Evidence collected by Johnson County District Attorney Phill Kline during an investigation of alleged crimes at a Planned Parenthood clinic in Overland Park can be retained by Kline's office, the Kansas Supreme Court ruled Friday. The evidence may be used in criminal proceedings against the abortion provider either by Kline or by his successor, Johnson County DA-elect Steve Howe.

Planned Parenthood had sought to remove from Kline's custody all records relating to the investigation, and had urged the court to hold the outgoing Johnson County DA in contempt.

The court denied Planned Parenthood's demand to recover the evidence and also found Kline had not committed contempt. In a brief statement Friday to a gathering of reporters at his Olathe office, Kline said: “We’re very pleased the prosecution can go forward.”

However, local and state media headlined the decision as a defeat for Kline apparently because of the harshly angry tone of Justice Carol A. Beier's written decision and because the court "sanctioned" Kline by demanding that he give a set of copies of the documents to the state Attorney General's office - something he had already done.

The decision may have been a clear-cut victory for Kline, but the future of the case more than likely will lie with newly elected Johnson County District Attorney Steve Howe, who assumes office in January.

Contacted Friday afternoon, Howe said he was not familiar with all the facts in the Planned Parenthood case, and he declined to speculate on whether the prosecution would proceed. Planned Parenthood faces 107 misdemeanor and felony counts for allegedly performing illegal late term abortions and manufacturing abortion reports at a clinic it operates in Overland Park.

“I said throughout my campaign that when I took office, I would evaluate all cases before me and make decisions based on the law and the evidence, and that’s what I intend to do,” Howe told Kansas Liberty.

The Supreme Court opinion, written in language that was strikingly hostile to Kline, was crafted by Beier, a Sebelius appointee. Beier "sanctioned" Kline by insisting that he give the state Attorney General's office a complete set of copies of the evidence in question. In fact, the Attorney General's office already had the copies.

Beier also ordered Kline to consult with Attorney General Steven Six on the case. Kline had already offered to meet with Six, but the Attorney General, another Sebelius appointee, so far has refused to meet with Kline.

Two of Beier's colleagues, Chief Justice Kay McFarland and Justice Robert E. Davis - the two longest-serving members of the high court - chided the opinion in separate concurring opinions.

“It appears to me that the majority invokes our extraordinary inherent power to sanction simply to provide a platform from which it can denigrate Kline for actions that it cannot find to have been in violation of any law and to heap scorn upon him for his attitude and behavior that does not rise to the level of contempt,” McFarland wrote. “This is the very antithesis of ‘restraint and discretion’ and is not an appropriate exercise of our inherent power.”

In fact, the sanction ordered by Beier and the majority – that Kline send copies of abortion records in his possession to the attorney general’s office – was not even sought by the plaintiff. Planned Parenthood had asked that the court to force Kline to “disgorge” all evidence he’d collected during his investigation, or that the evidence be suppressed.

In a separate statement, Davis criticized Beier's use of the term "sanction" in writing the opinion: “I would not classify the relief granted against Kline and his employees as sanctions.”

He added: “The majority opinion’s imposition of sanctions against Kline for his actions before this court presents a problem. While I recognize that this court possesses inherent power to impose sanctions in cases falling short of civil or criminal contempt, our exercise of that power must nevertheless be measured by objective standards.”

Davis wrote that the majority “is not measuring Kline’s action against any statute, rule, or other established standard, except to say that counsel Kline has not treated this action or this court with the respect demanded in such a proceeding.”

Caleb Stegall, a Kansas Liberty columnist and an attorney who represents Kline, said during the Friday press conference that each aspect of the relief sought by Planned Parenthood was denied by the high court.

“Mr. Kline was not ordered to disgorge the records at issue, but rather to provide a complete set of those records to the attorney general. Mr. Kline was not held in contempt. Mr. Kline was not held to have acted in bad faith. Mr. Kline was not held to have violated the constitutional privacy rights of patients or to have violated his oath of office. And no attorney fees were awarded,” Stegall pointed out.

Many area newspapers apparently missed the court's decision entirely and focused on Beier's "sanction" of Kline, only to change their stories later in the day.

- Phil LaCerte

 Resources:

• Beier's language was directed at Kline on a personal level, even ridiculing him for losing a recent election. You can read Beier's decision - and the efforts by Davis and McFarland to distance themselves from Beier's invective - here.

  This report has been updated and corrected since its publication Friday.  The potential use of the evidence collected by Kline was clarified and additional reporting was added. For an initial report, click here.

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