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Kansas Supreme Court Selected Opinion Summary
Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc., Plaintiff v. Phill Kline, Johnson County District Attorney, Respondent, and Stephen N. Six, Kansas Attorney General, Intervenor, Case No. 98,747
December 5, 2008

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Case No. 98,747: Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc., Plaintiff v. Phill Kline, Johnson County District Attorney, Respondent, and Stephen N. Six, Kansas Attorney General, Intervenor

The Supreme Court today denied an abortion clinic's petition for contempt proceedings against former Kansas Attorney General Phill Kline, but the court granted other relief and sanctioned Kline for his handling of the clinic's patient records.

The ruling came in a lawsuit filed directly in the Supreme Court by Comprehensive Health of Planned Parenthood of Kansas, Inc., a Johnson County abortion clinic, against Kline. Former Attorney General Paul Morrison had intervened in the lawsuit; he and his successor, Stephen N. Six, joined the clinic's effort to regain the records and other investigative materials Kline had ordered removed and sent to Johnson County after his defeat as attorney general and appointment as Johnson County district attorney in 2006.

In today's decision, the Court directed Kline to produce and hand deliver to Six's office a "full and complete and understandable set of any and all materials gathered or generated" by Kline and his subordinates in their abortion-related investigation and prosecution, both while Kline was attorney general and since he has been Johnson County district attorney." The Court set 5 p.m. next Friday, December 12, as the deadline for compliance and further ordered Kline and his subordinates involved in the investigation to meet with Six anytime up to noon, January 10, 2009, to explain the materials delivered pursuant to today's decision.

The justices were unanimous in their decision directing Kline to provide Six with the materials but divided 5-2 on whether the Court should order a portion of the materials delivered under its inherent power to sanction him. The majority, led by Justice Carol A. Beier, declared that Kline should be sanctioned for a series of actions he took in the protracted litigation; Chief Justice Kay McFarland and Justice Robert E. Davis wrote separate opinions concurring in the result.

Today's decision followed an earlier Supreme Court case filed as a result of Kline's issuance of inquisition subpoenas to both the Johnson County clinic and a second abortion clinic, Women's Health Care Services of Wichita, P.A.

In the earlier case, which was filed as Alpha Med. Clinic v. Anderson, the clinics contended the subpoenas violated their patients' rights to privacy and urged the Court to find Kline in contempt of court "because he had attached to his brief portions of a district court transcript and order, had discussed the same at a press conference, and had permitted distribution of the same after the conference concluded, all allegedly in violation of court seal orders," Justice Beier wrote in today's decision.

The justices declined to find Kline in contempt of court in the Alpha case but set forth procedures for handling patient records designed to protect patient privacy rights. Following massive publicity about the inquisition, Kline's subsequent appearance on the "Bill O'Reilly" television program, a statement by O'Reilly that he had seen the patient records in question, a published interview of a Baltimore psychiatrist based on his review of the records, and other news-generating events, the current lawsuit was filed.

In addition, the Court said today that Kline and his subordinates took all copies of the patient records to Johnson County when he left the attorney general's office. Justice Beier wrote in today's decision that the "state's taxpayers, in the person of the current Attorney General, are entitled to a full, complete and understandable set of these materials."

"The record before us discloses numerous instances in which Kline and/or his subordinates seriously interfered with the performance of his successors as Attorney General and seriously interfered with this Court's effort to determine the facts underlying this action and the legal merits of the parties' positions."

She said Kline "was demonstrably ignorant, evasive, and incomplete" in sworn written responses submitted to a district judge appointed by the Supreme Court to resolve 17 fact questions. "Kline's responses were far from full and forthright; they showed consistent disregard for Kline's role as a leader in state law enforcement; and they delayed and disrupted this Court's inquiry," Justice Beier wrote.

The opinion also stated that a minimum of $50,000 "in personnel expense associated with filings, hearings, and conferences…could have been avoided if Kline's conduct had been otherwise." The Court declined to impose that amount as an additional sanction, however, because the cost would have to be borne by Johnson County rather than Kline personally. "We are unwilling to make those taxpayers foot any further bill for the conduct of a district attorney they did not elect in the first place and have now shown the door," Justice Beier wrote.

After a lengthy description of Kline's mishandling of the clinic records and other materials, the majority said "an obvious and sorry pattern emerges from the foregoing examples and from Kline's performance at oral argument before us. Kline exhibits little, if any, respect for the authority of this Court or for his responsibility to it and the rule of law it husbands. His attitude and behavior are inexcusable, particularly for someone who purports to be a professional prosecutor."

"It is plain that he is interested in the pursuit of justice only as he chooses to define it. As already noted in Alpha, he has consistently disregarded the clear import of this court's directions, instead doing what he chose because 'he knew best how he should behave, regardless of what this court has ordered, and [believed] that his priorities should trump whatever priorities this Court had set,'" Justice Beier wrote, quoting from the decision in the Alpha case.

Justice Davis said in his concurring opinion that he agreed with the majority's result and that the issue presented was Kline's handling of the records since the Alpha decision, but that he would issue today's orders without resorting to sanctions.

"I am not unmindful of what the facts in this record demonstrate, but I believe the same result may be reached without the resort to sanctions," Justice Davis wrote. "Because of their potency, inherent powers must be exercised with restraint and discretion. In that light, we should refrain from imposing sanctions under our inherent powers to punish for bad faith conduct where that conduct can be adequately sanctioned under other rules or procedures."

"The facts-without any inferences-speak for themselves concerning the performance of Kline and his employees. I would not attempt to characterize those actions in handling these records and responding to the investigation of this Court, as the record speaks loud and clear. I would therefore leave the matter in the hands of the Disciplinary Administrator for an independent judgment as to whether ethical violations have occurred during the course of these proceedings. Otherwise, I agree with the disposition of this case," Justice Davis concluded.

Chief Justice McFarland said in her concurrence that she agreed with Justice Davis that the order for Kline to submit a complete set of records is appropriate and that his failure to have done so when he left office hampered his successor's ability to determine his course of action with regard to the investigation.

"However, I strongly disagree with characterizing this relief as a sanction imposed under our inherent power to sanction bad faith conduct," Chief Justice McFarland wrote.

"[E]ven if there were an extraordinary and compelling need to invoke our inherent power to sanction, doing so would have to be conditioned upon a finding that Kline engaged in bad faith. In this case, however, the majority invokes our inherent power without making any finding that Kline engaged in bad faith conduct. It is well-settled that a specific finding of bad faith is a prerequisite to the imposition of sanctions under the Court's inherent power," the chief justice wrote.

"While the sanction imposed by the majority requires Kline to provide copies of records and investigative materials to the Attorney General, the laundry list of Kline's conduct cited by the Court as justification for imposing the sanction bears virtually no relationship to Kline's failure to leave the incoming Attorney General a full and complete set of records and investigative materials. Instead, the majority's grievances with Kline's conduct focus on the perception that Kline and his subordinates have shown a lack of respect for the court and the rule of law, disregarded 'the clear import of the court's directions,' persisted in the attitude and behavior previously identified as problematic in Alpha, and maximized jeopardy to the balance between the patients' privacy rights and law enforcement interests."

"In this case, the relief denominated as sanctions is the relief requested, warranted, and available in this mandamus action," Chief Justice McFarland wrote. "Under these circumstances, there is no compelling need, nor are there any dominating reasons of justice, to invoke our extraordinary inherent power of sanction…That being so, it is not appropriate to invoke our inherent power to order this relief," she concluded.