2008-12-05: Chief Justice Calls Out Sebelius Appointee

For updates or to access directly go to the Kansans for Life web site at www.kfl.org


Kansans for Life

Press Analysis Dec. 5, 2008

Contact Kathy Ostrowski, Legislative Director, at 785-969-8595

Kansas Supreme Court Vindicates Kline, but Chief Justice Rightly Calls Insults to Kline Inappropriate and Unwarranted


A mandamus action asks the Court to compel a government agent or agency to perform a specific duty. Today, the Kansas Supreme Court ruled in a Planned Parenthood mandamus action that Phill Kline should have left copies of investigative materials against abortion clinics in the office of the Attorney General.


The ruling accurately states,

“In this case, Kline nevertheless insists that [Planned Parenthood] is merely trying to stymie his criminal case against it in Johnson County, improperly attempting to "pick its prosecutor" by forcing Kline to surrender the patient records to the Attorney General, who has exhibited no interest in filing charges. Kline is correct that, before Six took office, Morrison had issued a "no prosecution" letter to CHPP. As of this writing, Six has chosen to pursue a Morrison-generated, multiple-misdemeanor case against WHCS in Sedgwick County but has not begun any prosecution of CHPP.”


The criminal prosecution of Planned Parenthood for 107 felony and misdemeanors for illegal late-term abortions remains in place. The original evidence is held by District Judge Richard Anderson, who remains under gag order by the Kansas Supreme Court, at the request of current AG Stephen Six.


What today’s ruling did and did not do:

Planned Parenthood wanted the Court to proclaim Kline never had power to remove abortion records from the AG office. That didn’t happen.


Planned Parenthood wanted Kline purged of every shred of criminal evidence against them and the Johnson County prosecution ended. That didn’t happen.


Planned Parenthood wanted Kline fined, held in contempt of court, and their attorney fees paid. That didn’t happen.


Planned Parenthood wanted Kline’s reputation destroyed with a media-feeding chastisement by the Court. That was accomplished in the majority opinion penned by Justice Carol Beier, a Sebelius appointee.


Justice Beier’s writing reflected the same abortion advocacy--and even regurgitated settled matters--from the Court’s February 2005 “Alpha” ruling on abortion files.  Today’s ruling quotes at length Kline’s actions and responses to a special investigation ordered by the Court, yet no illegal behavior is cited.   


In fact, Chief Justice Kay McFarland—while agreeing that today’s order for Kline to share information with the current AG was appropriate -- decried much of the ruling, saying

the majority is more interested in reprimanding Kline for his attitude and behaviorIt 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. This is the very antithesis of "restraint and discretion" and is not an appropriate exercise of our inherent power.


Chief Justice McFarland wrote,

“I strongly disagree with characterizing this relief as a sanction imposed under our inherent power to sanction bad faith conduct….the majority specifically declines to impose sanctions on Kline for the conduct of which [Planned Parenthood] complains–Kline's handling of the records during the transfer from the Attorney General's office to the Johnson County District Attorney office and on access and dissemination of the records and their content once they were in Kline's hands.”


Justice Robert Davis also supported the ruling to share records but disagreed that this was a rebuke of Kline, saying,

“ I would not classify the relief granted against Kline and his employees as sanctions.

The fundamental problem with the majority's decision to impose sanctions in this case is that there is no objective test--statutory or otherwise--by which the court can measure Kline's conduct and by which attorneys can avoid such penalties in the future.”


This is a serious warning about how far Justice Beier’s opinion strays from judicial restraint. Chief Justice McFarland criticizes the conclusion of today’s ruling, saying


“I believe it is inappropriate to set forth, as if to threaten [Kline] with, the various penalties that could be imposed if some past or future hypothetical misconduct should "come to light" at a later date….This vague statement seems to anticipate and encompass the discovery of additional past or future misconduct.”


Today’s ruling dismissed arguments by Planned Parenthood and the Attorney General that Kline acted illegally in the transfer and handling of abortion records. Chief Justice McFarland writes "There is no finding that the conduct the majority sanctions was committed in bad faith."


Would it be too much to hope that illegal acts by Planned Parenthood and George Tiller -- of which evidence as reviewed by 5 judges meets the level of probable cause—now can be prosecuted in good faith?







Contact: Mary Kay Culp, Executive Director, Kansans for Life  913-406-4446


Statement by Mary Kay Culp, KFL Executive Director:

"We welcome today's Kansas Supreme Court decision. Beyond the spin remains the fact that Kline was upheld, as the decision only requires him to give copies of his copies to the Attorney General and explain the case to them. Judge Anderson retains the original criminal evidence against Planned Parenthood, and the Supreme Court's earlier indefensible suppression of him as a witness must end.

"The Court was also right to deny Planned Parenthood's petition for contempt proceedings against Kline, despite Justice Carole Brier's animus towards Kline, and deafness to the exoneration of Kline in the fact-finding report that the Court itself ordered from Judge King.

"We are issuing a tornado warning, however for the spin that Planned Parenthood will use to try and hide the fact that nothing happened today that undermines or invalidates the merits of this case.

"The Planned Parenthood lawsuit was ostensibly about their concern about the privacy of patient records.  

"But, note that no patient's name has ever become public, nor was ever in danger of becoming public.  The medical records were redacted and the one page KDHE abortion reports have never included a woman's name, only city and state and year of birth.

"It is interesting to take a moment to remember that a 2002 Kansas Department of Health and Environment inspection found that this very same Planned Parenthood clinic was sloppy with the handling of the privacy of their patient's records.
In one case a box of patient records was left where other patients could access them."
See below:

May 24, 2002
“Report by the Kansas Department of Health and Environment, KDHE Bureau of Health and Facility Regulation, Statement of Deficiencies and Plan of Correction,


Survey ID 409526 regarding Comprehensive Health of PPKM (Planned Parenthood of Kansas and Missouri).


ID Prefix Tag:  SO485


28-34-57(b) RQUIREMENT:




Each medical record shall be the property of the ambulatory surgical center.  Only persons authorized by the governing authority shall have access to medical records.  These persons shall include individuals designated by the licensing department for verifying compliance with the state or federal regulations, and for disease control investigations of public health concern.


This  REQUIREMENT is not met as evidenced by:


Based on observation and staff interview the facility failed to assure that only authorized personnel had access to medical records.


 - The initial tour on 5-22-02 revealed several boxes of medical records stored in an unlocked, open room.  Each box had "2000" written on the top or side.  Interview with facility staff confirmed that these boxes contained medical records of patients admitted to the facility during the year 2000.  The staff stated that the door is locked most of the time.  During the survey on both days 5-22-02 and 5-23-02 several staff opened the door, entered and then left the room without using a key.  Staff stated that they needed access to the room for copying purposes but did not need access to those medical records.  All staff have access to these records.


 - The initial tour on 5-22-02 revealed boxes of lab results stored in the hallway against the back wall.  The lab forms contained patient information All staff and patients had access to these files.  Interview with nursing revealed that the boxes awaited transport to an outside storage area.”

(emphasis added by Kansans for Life)

It wasn't noted by the Department of Health whether the boxes were cardboard or Rubbermaid.

We are reading the full decision and will have more comments later. At first glance, the summary released by the Court in this case, appears misleading compared to the bottom line facts in the decision itself.  




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