Kansas court rebukes prosecutor who sought abortion files

Kansas City StarDecember 8, 2008 

In a 40-page ruling lreleased last week, the Kansas Supreme Court slammed Johnson County District Attorney Phill Kline for his handling of an ongoing abortion case.

But in the end, after justices called Kline's actions inexcusable and accused him of not having respect for the law, he got what he wanted.

Kline gets to keep medical records of women treated at Planned Parenthood in Overland Park, Kan. — the basis of his pending 107-count criminal case against the clinic. He only has to provide copies of all investigative materials to the Kansas attorney general by Friday.

That means the records will remain at the district attorney's office and Kline's successor, Steve Howe, will have them if he continues the case once he takes the helm in January.

Planned Parenthood is charged with performing illegal late-term abortions and falsifying records. Howe said he couldn't comment on a pending case but vowed a fair review.

Planned Parenthood wanted Kline to relinquish all records and the high court to hold him in contempt and fine him. Attorney General Steve Six said he wanted "any and all" evidence Kline developed during his investigation.

A 5-2 majority described the court's order to Kline as a sanction and said it was sending its ruling to the state official who handles disciplinary cases against attorneys. It said Kline's conduct in handling the records and dealing with the Supreme Court may warrant punishment "up to and including disbarment" — a decision the court ultimately would make.

Kline's "attitude and behavior are inexcusable, particularly for someone who purports to be a professional prosecutor," the ruling read. "It is plain that he is interested in the pursuit of justice only as he chooses to define it."

Justice Carol Beier, who wrote the majority opinion, said that fining Kline a $50,000 minimum for expenses he caused would only hurt Johnson County taxpayers, who rejected Kline in the primary last summer.

Sean O’Brien, a Kansas City law professor, said it was unusual for a high court to issue such a "tongue-lashing," but there was no other serious punishment.

"Perhaps from their point of view, the public embarrassment of being chastised by the highest court in the land is enough," O’Brien said.

Peter Brownlie, president and CEO of Planned Parenthood of Kansas and Mid-Missouri, said he was disappointed that the court didn't order Kline to hand over all the records — only copies — and didn't hold him in contempt.

But he called the overall ruling a victory that made clear that "Phill Kline is a zealot pursuing a lawless prosecution and misusing people’s trust to advance a radical anti-choice political agenda."

Kline sees it differently. In a news conference last week, Kline's lawyer said his client won on all issues. Kline said only: "I'm very pleased that the prosecution can go forward."

His attorney Caleb Stegall noted that two justices wrote separate opinions that disagreed with the finding of sanctions, even though the only sanction was that Kline had to make copies of records he did not mind copying.

Chief Justice Kay McFarland agreed that Kline should provide the copies but said the majority wrongly made that a sanction, which should require a finding that Kline acted in bad faith.

"The majority is more interested in reprimanding Kline for his attitude and behavior," she wrote, "…than in remediating the failure to leave a complete set of investigative records for the incoming Attorney General."

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