Topeka — Former Kansas Attorney General Phill Kline testified Monday in an ethics hearing that he and his subordinates had the right to deceive other state agencies and didn’t have a duty to immediately correct flawed information provided to a trial judge as they started investigating abortion providers.
Kline faced more than three hours of questions from an official who filed an ethics complaint against him, stemming from investigations Kline pursued as attorney general from 2003 to 2007 and as Johnson County district attorney from 2007 to 2009.
The three-member panel of the state Board for the Discipline of Attorneys that opened the hearing Monday will make a recommendation to the Kansas Supreme Court on what sanctions, if any, Kline should face. The complaint alleges Kline and subordinates misled other officials and mishandled patients’ medical records in investigating the late Dr. George Tiller, of Wichita, and a Planned Parenthood clinic in suburban Kansas City.
Kline, an anti-abortion Republican, vigorously disputes the allegations, but said he’s not surprised to face a complaint because of past criticism of him by the clinics and other abortion rights advocates.
Part of his testimony Monday focused on the beginning of his investigations of the two clinics in 2003, just months after he became attorney general. Suspecting the clinics weren’t reporting cases of sexual abuse of children to authorities as required by law, his staff sought information about abuse reports from the state Department of Social and Rehabilitation Services.
His staff wouldn’t fully disclose to SRS why it sought the information, and the complaint alleges Kline’s staff misled SRS officials.
In testimony, Kline wouldn’t concede SRS had been deceived, but added that he viewed SRS as a potential witness. He said courts regularly allow law enforcement officials to withhold information from witnesses — and even actively deceive them and suspects — to protect an investigation. Misleading SRS, he said, “would not have been a problem.”
“That is reasonable. That is normal conduct,” he testified, his voice rising. “It was appropriate.”
Kline filed misdemeanor charges against Tiller in December 2006, accusing the doctor of performing illegal late-term abortions and failing to adequately report the details to the state, as required by law. The case was dismissed for jurisdictional reasons, and Kline’s successor filed different misdemeanor charges the following year.
Tiller was acquitted in 2009, shortly before being murdered while attending church.
A criminal case against the Planned Parenthood clinic, filed by Kline as Johnson County district attorney in 2007, is pending. The clinic denies the allegations in the 107 charges that it performed illegal abortions and falsified records.
Kline lost his bid for re-election as attorney general in 2006; Republicans selected him to fill a vacancy in the Johnson County job, but he lost the 2008 GOP primary for the post. He’s now an assisting visiting professor of law at Liberty University in Lynchburg, Va., founded by evangelist Jerry Falwell.
The state Supreme Court — which already has criticized Kline in opinions in abortion cases — could impose no sanction, or a punishment ranging from an informal admonishment to the loss of his license to practice in state courts. But Kline’s license was suspended in October after he didn’t pay a $50 annual fee.
“I don’t believe I should be here, and I didn’t want to pay you money,” Kline told state Disciplinary Administrator Stanton Hazlett during his testimony.
The complaint notes under Kline, the attorney general’s office successfully sought in October 2003 to open a court-supervised “inquisition” into the clinics, based partly on data from SRS. The inquisition allowed Kline to seek subpoenas for documents or testimony.
Nine days later, an internal memo showed Kline’s staff knew the SRS data was flawed, but his office didn’t inform the judge until May 2004, nearly seven months later.
“Shouldn’t you immediately inform the judge?” Hazlett asked.
Kline replied: “I don’t know if that duty exists.”
Kline noted his office told the judge the next time it sought a subpoena, arguing it fulfilled the requirement to make a correction. He noted that when Tiller’s attorneys raised the same issue in trying to block the doctor’s prosecution, the judge ruled the criminal case still should go forward.
“We just have a difference of opinion about the duties of a prosecutor,” Kline told Hazlett.
Kline said his complaint “parroted” arguments made by Tiller attorney Dan Monnat in 2008 in an unsuccessful attempt at getting the criminal case against Tiller dismissed.
And in his opening statement, Kline attorney Reid Holbrook even guided the panel through similar passages in both. Later, Hazlett said his complaint contained numerous allegations not included in Monnat’s work.
Former Kansas Attorney General Phill Kline says he's not surprised to be facing a professional ethics complaint over his past investigations of abortion providers.
A three-member state panel began a hearing Monday on the complaint against Kline. It accuses him and subordinates of misleading other officials to further his investigations, and of mishandling patients' medical records.
Kline said during a break in Monday's proceeding that he strongly disputes those allegations. He attributes much of what's in the complaint to criticism of him by an attorney for the late abortion provider Dr. Tiller of Wichita.
As attorney general, Kline investigated Tiller and a Planned Parenthood clinic in suburban Kansas City.
One of Kline's attorneys, Reid Holbrook, spent much of his opening statement comparing the text of the ethics complaints to a motion filed by Monnat in 2008, seeking to dismiss misdemeanor charges filed against Tiller by Kline's successor as attorney general.
Holbrook accused disciplinary administrator Stanton Hazlett of "cutting and pasting" much of the text from Monnat's motion into the ethics complaint.
"There is a clear pattern where Mr. Hazlett is going to follow and go down the motion to dismiss," Holbrook said. "The language used by Mr. Hazlett is substantially the same."
The panel, members of the state Board for Discipline of Attorneys, will decide whether Kline breached professional ethics and, if it does, recommend sanctions to the Kansas Supreme Court. The justices — who've been critical of Kline in the past — would decide what punishment, if any, to impose, including an informal admonishment, public censure or even the loss of his license to practice in state courts.
Monnat is listed as a witness in the ethics hearing, and Hazlett acknowledged many of the allegations in the complaint are based on criticism from Tiller's attorney.
Holbrook led the panel through sections of the complaint and show how they incorporated language in Monnat's work. In one, case, a lengthy footnote in the complaint is taken word-for-word, but for the correction of a typographical error.
But Hazlett said he didn't know why the similarities between the ethics complaint and Monnat's work are relevant because "these are two different proceedings."
And he also said in his opening statement that "the rules obviously require a lawyer to be truthful to the courts."
Holbrook also spent part of his time discussing Kline's record as attorney general, attempting to dispel what he said is the mistaken notion that Kline concentrated only on pursuing abortion providers.
"I think that the evidence is going to be that Phill Kline did a good job as attorney general of this state," he said.
A criminal case Kline filed in 2007 against the Planned Parenthood clinic is still pending. Tiller was acquitted of misdemeanor criminal charges in 2009, shortly before he was murdered while attending church in Wichita.
Kline, an anti-abortion Republican, was attorney general from 2003 to 2007. He served as Johnson County district attorney for two years after that, and he's now a visiting assistant law professor at Liberty University.
Kline's investigations of Tiller and Planned Parenthood led to lengthy legal battles between him and their clinics — and three major Supreme Court decisions in the past five years. Elected attorney general in 2002, he lost his bid for re-election in 2006, only to have fellow Republicans appoint him Johnson County district attorney. But he lost the GOP primary for that office in 2008.
The ethics complaint against Kline, filed by Hazlett last year, cites more than 20 instances in which it says Kline or subordinates misled others, including a grand jury in Johnson County and, once in Kline's case, the disciplinary administrator's office.
Another key issue is the handling of edited copies of medical records for 89 patients from the clinics, obtained in 2006 through subpoenas. The Supreme Court has previously criticized Kline, suggesting he and his subordinates didn't show enough regard for patients' privacy.