The Johnson County District Attorney, Phill Kline, last week asked the Kansas Supreme Court to remove a gag order slapped on a district court judge to keep him from testifying in a criminal prosecution.

It was the first in a series of related events leading to a dramatic reversal by Attorney General Stephen Six who had been seeking the immediate return of documents subpoenaed from an abortion provider.

Kline said in a motion filed with the high court that the testimony by Shawnee County District Court Judge Richard Anderson is needed in a case against a Johnson County abortion provider, Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc.

Kline said Anderson has testified previously in court that some documents supplied by Planned Parenthood appeared to have been altered. The documents had been produced in response to a subpoena issued as part of an effort to monitor the clinic's compliance with state laws.

Anderson told a hearing that "there is evidence of crimes in those records that needs to be evaluated." In describing the evidence, Anderson said, "it appears someone has manufactured" portions of the records.

Anderson said that could possibly mean “that somebody committed a felony in an attempt to cover up a misdemeanor.”

Anderson had been subpoenaed by Kline to testify in a 107-count criminal case against Comprehensive Health for Women. In the case, Kline alleges the abortion provider committed 84 violations of Kansas late-term abortion laws and 23 felonies for providing false information.

On April 3, Anderson notified the Supreme Court he was going to testify in the case. Five minutes after Anderson's notification was filed with the court, Attorney General Stephen Six filed a motion to silence Anderson.

The next day, without seeking an opinion from Kline, the Supreme Court ordered Anderson not to testify. Kline said his office "was not aware of [Six's] motion, was not provided notice of the motion and accordingly did not have any opportunity to respond to the motion." Kline's office wasn't made aware of the gag order until May 16, when Anderson notified Kline he was seeking to quash the order to testify in compliance with the Supreme Court's support of Six's motion.

Kline also claimed the high court offered no legal authority in ordering Anderson to defy the subpoena.

Anderson oversaw Kline’s investigation of abortion providers when he was Attorney General. It was during that process that Kline originally obtained copies of records that he believed would help prove criminal acts. Anderson subsequently allowed Kline to have the records transferred to Johnson County, where the abortion clinic is located, after Kline became Johnson County District Attorney.

The Attorney General’s Office, under Paul Morrison and now under Stephen Six, has sided with the abortion providers, and sought to have the records returned by Kline.

Anderson, however, testified earlier that "returning evidence to Planned Parenthood as requested by the Attorney General would unacceptably increase the risk that evidence could be lost, destroyed or compromised."

Abortion providers also have strenuously objected to the use of the records in the criminal case, declaring that the privacy of abortion recipients could be jeopardized.

However, an attorney appointed by the court to supervise handling of the records, Stephen Cavanaugh, said the records do not threaten the privacy of abortion recipients, and a review of forms indicates that no identifying information is included in the records sought by Kline.

The Supreme Court’s quashing of the Anderson subpoena, Kline contends in his motion, inhibits his ability to do his lawful job.

“Orders in the current proceeding substantially impair applicant’s ability to exercise his authority and perform his duty by prosecuting a criminal defendant in a case in which the sufficient requisite finding has been made to allow the filing of the criminal charges,” Kline’s motion states. “Accordingly, intervention is warranted.”

• Update [May 21]: Preliminary hearing in Planned Parenthood case delayed. See related story.
• Update [May 22]: The Kansas Supreme Court gave Six until Thursday to justify his lawsuit against Anderson. The suit sought return of the records collected during the investigations of two abortion clinics, Planned Parenthood in Overland Park and George Tiller in Wichita.

The records contain no personally identifying information relating to patients, but are required for the ongoing investigation of the abortion providers and whether they followed state abortion laws.

Anderson testified earlier that the records may have been illegally altered. Six seeks to return the records to the clinics suspected  of altering them. [May 22, 2008]

• Update [May 23]: Attorney General Stephen Six responded Thursday evening to the Supreme Court's order by rescinding his lawsuit. Six demanded that the records in question be returned "at the conclusion of any pending litigation (including prosecution)," a routine procedure in most courts.

Johnson County DA Phill Kline released a statement welcoming Six's response:

"I am pleased that the Attorney General's office has reversed course and now recognizes that redacted records in which judges have found probable cause to believe that crimes have been committed should be used in the criminal prosecution.  Accordingly, tomorrow I will file a motion for the Kansas Supreme Court to allow Judge Anderson to testify."

 Relevant Facts:

1. Judge Richard Anderson oversaw then Attorney General Phill Kline's investigation of Planned Parenthood.
2. Judge Anderson gave Kline permission to take copies of the Planned Parenthood records to Johnson County when Kline became District Attorney in January 2007.
3. Former Attorney General Paul Morrison filed motions seeking to have Anderson order Kline to return all copies to Morrison and for Anderson to give up his copies of the redacted medical records.
4. Anderson refused Morrison's motion stating that the records "contain evidence of crimes that need to be evaluated."
5. Morrison issued a clearance letter for Planned Parenthood and sued Judge Anderson.  Planned Parenthood sued Phill Kline and Morrison joined the suit against Kline.
6. Kline finished his investigation and filed a 107 count Criminal Complaint against Planned Parenthood in October 2007.
7. In January 2008, Anderson testified at a hearing in Kline's criminal case in which he stated the records produced by Planned Parenthood demonstrated "serious" issues.  In court filings Anderson has stated that the records "appear to be manufactured" and that "someone could have committed felonies to cover-up misdemeanors."  Anderson testified that on his own he took the records to a document expert with the Topeka Police Department who said the records "don't match up."
8. January 31, 2008 Morrison resigns.  Governor Sebelius appoints Stephen Six.
9. February, 2008 Attorney General Six continues his suit against Anderson and his suit against Kline.
10. April 2008, Kline subpoenas Anderson to testify again in the criminal case.
11. April 3, 2008 Attorney General Six files a motion asking the Supreme Court to order Anderson not to testify.
12. April 4, 2008 the Kansas Supreme Court, without notice to Kline, orders Anderson to not testify in Kline's case.
13. May 16, 2008 Kline learns of the order that Anderson not testify when Anderson files a motion to quash Kline's subpoena.
14. May 21, 2008 Kline files a motion to Intervene in the Supreme Court dispute between Attorney General Six and Judge Anderson so that Kline can seek for the Supreme Court to modify its order and allow Anderson's testimony.
15. May 22, 2008, Attorney General Six reverses course and states that his office has no objection for the records to be used in any pending criminal case.
16. May 22, 2008 Kline announces he will seek an immediate modification of the Supreme Court order.

The DA's office renewed its summons to both Judge Richard Anderson and Stephen Cavanaugh, the attorney appointed to supervise handling of the case documents. The summons will require both to testify when the preliminary hearing convenes July 21-22.

On May 27 Kline will take up motions before Judge Tatum and seek to enforce his subpoena on Judge Anderson. Kline will also be asking to reconsider Tatum's quashing of the KDHE subpoena.

• Kansas Liberty Timeline: To review the events in this and related cases, click here.