The extraordinarily personal language used by Kansas Supreme Court Justice Carol Beier in a decision concerning the long legal effort by Planned Parenthood to avoid prosecution for allegedly performing illegal abortions and falsifying records has drawn a great deal of attention and created confusion, since, although the petition by Planned Parenthood was denied, Beier's language excoriated Kline, who emerged victorious.

Kansas Liberty asked James O'Connell - former CEO of Providence-St. Margaret Health Center, former Kansas Secretary of Health and Environment and, for several years, a practicing attorney in the Kansas City area - to analyze the decision, and especially the controversial language in which it was written.

Officially, the case was called Comprehensive Health of Planned Parenthood of Kansas, et al. vs. Kline (Kansas Supreme Court No. 89,747).  It is the latest in a string of court actions initiated by Planned Parenthood to block prosecution of the organization for violation of Kansas law and resulted in a Kansas Supreme Court Opinion that Chief Justice Kay McFarland said revealed “that the majority is more interested in reprimanding Kline for his attitude and behavior...” than in addressing the issues raised by Planned Parenthood.

The court did plenty of reprimanding, using surprisingly critical and personal assaults, while finding no basis upon which to grant Planned Parenthood’s wishes.

That's right. It may come as a surprise to know that, despite all that you may have read in the local press and heard on radio and television, Planned Parenthood lost this lawsuit!

Planned Parenthood asked the Supreme Court to force Johnson County District Attorney Phill Kline to surrender all copies of records obtained from it as part of an investigation initiated by Kline when he was Kansas attorney general. The investigation was authorized, as required under Kansas law, by a Shawnee County judge. 

After it had failed in a similar action in Shawnee County District Court, Planned Parenthood asked the state Supreme Court to compel Kline to return all copies of the records to the attorney general’s office and to hold Kline in contempt for what it claimed was his failure to comply with the court’s ruling in an earlier case brought by Planned Parenthood.  (Alpha Med. Clinic vs. Anderson, 280 Kan.903 [2006].) 

In the Alpha Med case, the court refused to hold Kline in contempt, finding that he and his staff did not release information that harmed personal privacy, did not prejudice the administration of justice or otherwise interfere with the work of the Supreme Court. 

The court also noted that the Alpha Med case did not direct Kline as to how he should handle records after they were delivered to his office by the Shawnee District Court, but instead that ruling instructed the Shawnee County judge as the steps he should take to protect the identity and privacy of the individuals whose records were subpoenaed to be delivered to that court.

One of the other issues in the Alpha Med case was whether Kline should have been held in contempt of court because he attached part of a sealed court record to a brief that would not be kept sealed and held a press conference in which he made references to that same record. 

Kline contended that he did so because he believed it was necessary in order to bolster his arguments and to counter the public criticism of his investigation by Planned Parenthood and its supporters.  In other words, he felt it was necessary to fulfill his attorney’s duty to diligently represent his client—the people of the state of Kansas.

The court criticized Kline, saying that the rule for attorneys dealing with publicity about investigations and trials - Rules of Professional Conduct, section 3.6 - does not allow such actions on his part. 

Though the rule says that a lawyer may not make any statement that has “a substantial likelihood of materially prejudicing an adjudicative proceeding...," it also provides that such statements are permissible where necessary to protect a client from the prejudicial effect of recent publicity.  Specifically, actions such as those taken by Kline are permitted under the rule “when they are made in response to statements made publicly by another party, another party’s attorney or by third persons...”  Perhaps the justices are unaware of the multiple public attack campaigns waged by Planned Parenthood, Paul Morrison and other allies on Kline and his investigation.

In fact, the Supreme Court in Alpha Med noted that it was a highly unusual case in that it directed that the briefs and the oral arguments of the parties be public while the record in the case would remain sealed.  It did not directly address the obvious question as to how Kline could accomplish effective public briefing and argument without reference to the sealed record in the case.  The court finessed the issue when it found its directive in this regard was “challenging” and it was therefore inclined to give Kline the benefit of the doubt and would not hold him in contempt.

In the latest case, Planned Parenthood sought a writ of mandamus to require Kline to surrender all records that he has gathered in his investigation of it. 

This is consistent with Planned Parenthood’s apparent strategy to deny law enforcement access to evidence of wrongdoing while casting the prosecutor, Kline, as the villain. 

Mandamus is an action that asks a court to issue an order requiring a government official or a lower court to perform some duty or take some particular action.  The burden in such actions is on the party seeking mandamus and it could not be granted unless Kline’s legal duty is clear and he breached it. 

Attorney General Stephen Six intervened and supported Planned Parenthood’s claims, contending that Kline wrongfully took property belonging to the state when he removed the records.  The court took 30 pages to say that when Kline and his staff transferred the records at issue from the attorney general’s office to the Johnson County district attorney’s office, they did so in an unusual and sloppy manner, but did nothing unlawful.  They also found that there has been no release of constitutionally protected private information.  It therefore denied Planned Parenthood’s demand that Kline surrender all the records.

If one were to rely on news media reports, almost always a mistake, it would appear that Kline were required to turn over all the records in the possession of the district attorney’s office, thus depriving that office of the evidence gathered in the investigation of Planned Parenthood. 

On the contrary; Kline was only required to deliver copies of the records to Six and to explain them to him.  That has already occurred.

The court based this part of its decision on the belief that all copies of the records were transferred and that transfer of the records from the attorney general’s office to the Johnson County district attorney’s office stood “in the way of his successor doing his job.” 

Two interesting things are set out in the opinion. 

• First, in September 2007, some nine months after all the records were transferred to Johnson County, then Attorney General Paul Morrison notified Planned Parenthood that no charges would be filed. 
• Second, at about the same time, Morrison began his action to file misdemeanor charges against Tiller in Sedgwick County, effectively abandoning potential felony charges. 

If there were no relevant documents left behind for Morrison, on what evidence did he base these two decisions?  This glaring inconsistency is not noted or otherwise addressed in the court’s opinion.  We can only speculate about what motivated Morrison.

Prior to leaving the attorney general’s post in December, 2006, Kline appointed a Sedgwick County attorney, Donald McKinney, as special prosecutor for the investigation of Tiller’s clinic in Wichita.  The court maintains that no records were left behind in the attorney general’s office after Kline moved to Johnson County. 

However, the Court appointed a District Court judge as special master to investigate claims of wrongdoing against Kline.  That judge reported that there were investigation materials left in the attorney general’s office in boxes labeled for McKinney.  He also reported that McKinney never received or saw that material. 

Were all records and investigation materials removed by Kline or not?  What did Morrison and his staff do with the McKinney materials?  The opinion leaves the question open and there does not appear to be anyone on the horizon, including the current attorney general, prepared to pursue that question.

What was going on here?  Although much of Planned Parenthood’s case rested on the contention that Kline had mishandled the transfer of records to the Johnson County district attorney’s office by leaving them in unsecured locations, the Supreme Court’s special master found that Paul Morrison made public comments that were “hostile to the merits of Kline’s inquisition” and found that Morrison and his transition staff were uncooperative with Kline’s transition staff. 

Morrison denied Kline a secure storage area in the Johnson County district attorney’s office and refused to provide him with office space during the transition. These facts are relevant to the widely publicized complaints that the records transferred from the attorney general’s office were kept in unsecured locations, such as the living room of a staff member.  Perhaps there were other and better choices, but Morrison’s obstructionist tactics certainly did not help.

These factors apparently had no influence over either the court’s decision or the news media’s reporting of their version of the "facts." 

Morrison has not suffered criticism for his attempts at sabotaging Kline’s investigations at every turn in either the court’s opinion or in the media.  Much was also made over the contention that Kline had shown the records to Bill O’Reilly of Fox News.  The special master found that this contention was untrue.

Kline made what to most people would be an obvious point when he insisted that, in taking this case to the Supreme Court, Planned Parenthood was trying to stymie the criminal case against it in Johnson County and to “pick its prosecutor” by seeking to have all records given to Six. 

While noting that it is possible for the courts to unconstitutionally interfere with the executive branch function of prosecutors, the court ruled that the Johnson County case was “a different action ... simply not logically or legally equivalent to the type of judicial branch interference ... that we have previously disapproved.” 

However, when it later addressed the claim that Kline had improperly included attachments and references to the Johnson County case against Planned Parenthood in his brief to this court, it dismissed Kline’s contention that these actions were necessary to put the current case in context. 

In doing so, the court said:

“In our view, neither Kline nor his counsel can seriously believe that without the disputed portion of the their brief or the attachments, we would have been unaware of the chronology or the context of events underlying the case or the potential of any relief we grant to affect the Johnson County criminal case.”

Which is it?  Would the court’s ruling in this case, if it went the way Planned Parenthood wanted, affect Kline’s case against it in Johnson County or not?  The answer to that question is obvious to even the most casual observer.  Without the records as evidence, there would be no case against Planned Parenthood.  Fortunately, the decision did not grant Planned Parenthood’s wishes, and the evidence remains in the hands of the Johnson County district attorney's office.

The majority of the court supporting Beier’s opinion characterized Kline as being “demonstrably ignorant, evasive and incomplete in his sworn written statements...”  That he was “far from full and forthright...” and “showed consistent disregard for Kline’s role as a leader in state law enforcement...” 

Many similar statements are made about his responses to the court, the court’s “disappointment” at his handling of the Wichita clinic records, etc. 

The record made by the judge appointed as special master and as set out in the Supreme Court opinion certainly appears to give support these accusations.  There can be no doubt that the transfer of records could have and should have been done in a more orderly and controlled fashion. 

In reliance on its perceptions about these issues, the court ruled that the behavior of Kline and his subordinates merited “sanctions” by the court. 

Sanctions are an expression of displeasure and are a form of punishment for violation of rules of the court or other actions or inaction that interferes with the work of the court.  These steps are within the “inherent” authority of the court - that is, no statutory or other authority is required and sanctions are within the discretion of the court.  The “sanction” imposed in this case was to require Kline to turn over copies of the records to Six.

Justice Robert E. Davis concurred with the result of the case - the requirement that a copy of the records be delivered to Six - but noted that such a remedy was appropriate in a grant of mandamus, not as a sanction.  He faulted the majority because its imposition of what it termed sanctions lacked any kind of objective standard.  He characterized the action of the majority as “not measuring counsel’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.” 

The problem with this lack of a standard for court action is that it leaves it up to the eye of the beholder and, because it provides no notice of what constitutes a violation, amounts to a denial of due process.

McFarland was perhaps even more harsh in her evaluation of the majority’s action.  She opined that the majority “invoked 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.  This is the very antithesis of ‘restraint and discretion’ and is not an appropriate exercise of inherent power.”

What Davis and McFarland are pointing out is a perhaps minor example, but a good example nevertheless, of the abuse of unchecked power by judges. 

It occurs with increasing frequency that courts make up the law and the rules as they go along.  In a case like this, when taken together with the majority’s conclusion wherein it threatens future contempt proceedings and refers its opinion to the disciplinary counsel for possible action, including possible disbarment, it amounts to the court intimidating attorneys that appear before it. 

The disciplinary counsel is in charge of investigating and recommending disciplinary action, including possible disbarment, of attorneys.  In considering the concluding comments of the majority, it is worth noting that the disciplinary counsel works under the supervision of the Supreme Court and he makes his recommendations to the Supreme Court.  He handles such matters as the ethical investigation of Paul Morrison arising out of an extramarital affair and allegations that he attempted to interfere with Kline’s investigation of Planned Parenthood. 

The disciplinary counsel is a consummate professional and unlikely to be influenced, but the majority’s conclusion presents the appearance of prejudice in that the court appears to have already decided the Kline should be punished.  Davis aptly pointed to a U.S. Supreme Court case in which that court said courts “must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.”  It appears that offended sensibilities were a major force among the majority.

Ordinarily, attorneys’ fees must be paid by each party regardless of who wins, but can be awarded to the prevailing party in some cases. 

Planned Parenthood’s request for an award of attorneys’ fees was denied since it did not prevail.  Similarly, court costs can be awarded to the prevailing party.  In fact, the rules of civil procedure include specific provisions for such awards.  As a kind of retroactive large filing fee to be imposed on the party that did not file the action, the court considered charging $50,000 as “an additional sanction."  It stated that Kline’s “actions seriously interfered with this court’s efforts to determine the facts and arrive at resolution” and that such an amount was the minimum personnel and other costs incurred by the court. 

Short of holding Kline in contempt, it is difficult to see how what amounts to a fine could be justified in a case which Kline did not initiate.  The majority decided that it would not do so out of consideration for the taxpayers of Johnson County who would have had to pay such costs “for the conduct of a district attorney they did not elect in the first place and have now shown the door.”

Some may suggest that such politically oriented, gratuitous and spiteful comments are unworthy of the state’s highest court.  The majority, which castigated Kline based on a partial reading of a rule of professional conduct for attorneys, may want to review its own rules for judicial conduct.  They provide that judges should be “patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others...”  Perhaps it is just a manifestation of the majority’s frustration, but much of the language of this opinion may not comply with this standard.

One would never know it from published reports, but the opinion does confirm that Kline and his staff did not act unlawfully in any regard and did not cause or allow any disclosure of private information. 

Contentions that patients could be identified from evidence gathered in the case against Planned Parenthood remain pure speculation since all such information had been redacted before the records were produced. 

The fact is, the records have been in the possession of the courts, the attorney general’s office and the district attorney’s office for a long period of time and no patient has been publicly identified. 

Planned Parenthood and its supporters have done a masterful, emotional job of convincing the public that patient privacy is under attack while obstructing all efforts to enforce the law. 

This time it failed in spite of an all-out effort because Kline and his staff, though perhaps due some criticism for the informality of their approach and procedures, did nothing unlawful - as the court grudgingly found.

_____

Col. James O'Connell (USAF ret.) earned his BA from the University of Connecticut; his MA  from Washington University, St. Louis; and his  J.D. from the UMKC School of Law.

The Week in Review