December 5th. The Kansas Supreme Court today handed down a slew of opinions which will be covered here over the next few days. The most notable case was the decision in Comprehensive Health of Planned Parenthood of Kansas v. Kline, No. 98,747 This case is being covered extensively around the media and web, and therefore the summary here will focus on three areas: the legal significance of the ruling, Phill Kline and the Court itself. The decision was unanimous on the merits of the case, and was authored by Justice Beier, but Chief Justice McFarland and Justice Davis penned brief concurrences.
The background to this case is well known to anyone who has followed Kansas politics over the past few years and it is not necessary to relate all the details. Suffice to say, that during his tenure as Attorney General, Kline was investigating the abortion industry for illegal activities. A number of redacted medical records were subpoenad during this process. Kline lost his bid for re-election to Johnson County District Attorney Paul Morrison in 2006. Morrison was replaced as DA by Kline, who was appointed to serve out the remainder of Morrison’s term. In the course of this swap, Kline transferred the records relating to his investigation to the Johnson County DA’s office, and has continued the investigation there. Planned Parenthood brought this action to force the return of the documents and to have Kline cited for contempt of court. The Attorney General’s office (now occupied by Stephen Six, following Morrison’s resignation in disgrace last year) intervened in the case to demand the return of the documents.
Needless to say, the facts of this case are highly specific to a unique set of circumstances, and therefore as long term precedents have limited impact. However, it is important to note that the court ruled on several controversies, almost entirely in Kline’s favor. Among other things it held that:
- There is no inherent conflict in holding (albeit fleetingly) both the position of Attorney General and County DA.
- There is nothing illegal in the Attorney General transferring case documents to a County DA, even when both are the same person.
- There is nothing illegal in the transfer taking place via private subordinates carrying the documents (though there is concern from the court over the audit trail of access to the documents)
For these reasons, the court rejected the Attorney General’s demand that the documents be returned. Additionally, the court rejected Planned Parenthood’s wish that Kline be cited for contempt and refused to order that Kline pay costs – it says it did this because it wanted to save Johnson County taxpayers their money, but whatever the reason Planned Parenthood is stuck with the bill.
At this point, readers may be wondering why this account does not match the tenor of other news stories. The reason for this is that the court did three notable things: one reasonable, one debatable and one extremely unusual. The first was that it ordered Kline to provide the Attorney General’s office with a copy of all the documents taken from Topeka. This is a reasonable position – in coming to this decision the court ruled that while Kline was well within his rights to transfer the information to Johnson County, he should not have removed all the original copies of the documents. The second outcome of the case is that Kline is also ordered to provide the Court with a copy of all further documentation generated during the course of the Johnson County investigation. This will be discussed further below, but is characterised as a sanction taken against Kline to punish him, which is why news coverage describes the case the way it does. The third is that the tone of the opinion is very aggressive and critical of Kline. Reading through the opinion one would think that Kline is about to receive a more severe punishment than he actually does. Again this will be discussed below.
From a legal standpoint, the case is of limited precedential value but a victory on the merits for Kline. In practical terms it means that the Johnson County prosecution of Planned Parenthood can continue (provided Kline’s successor Steve Howe wishes it).
The author of this piece moved to Kansas after the 2006 election and therefore has little at stake in the controversies which surround Kline. For the record as an outside observer I felt that he was mistreated by the media and made out to be something he was not. However, such is politics. Conservatives are held to a different standard. Given that, it is worth reflecting on the lessons other conservatives can learn here. The court was extremely critical of Kline, did not like his actions and did not like his tone. However, they still handed him a victory. Had Kline been a bit more careful in what he did and how, and left a copy of the documents in the Attorney General’s office, this victory would have been total and we would be reading in the papers of a grudging vindication. Because the court was able to rule against him on one thing, we are not, and those who only read the headlines and first paragraphs will think that he lost. For this, Kline has himself to blame. Conservatives should take more care in managing perceptions and how they are able to be portrayed.
The Kansas Supreme Court
In a way the biggest loser in this affair is the Court’s reputation. Kline is almost done as DA. The case will live or die based on the internal politics of Johnson County and the Attorney General’s office. Planned Parenthood and others will eventually end up in court and will stand or fall on the merits of the case, not procedural oddities. This would have been true whatever the outcome. But this strange case will remain in the Court’s publications forever.
Justice Beier’s tone is scathing throughout the opinion. She dislikes Kline and wants you to know it. She mocks his defeat in the Johnson County primary election and darkly hints that the decision has no bearing on future cases investigating his potential ‘misconduct’, while forwarding the opinion to the Disciplinary Administrator. And it is this that motivates the concurrences by both the outgoing and incoming Chief Justice. Justice Davis clearly likes Kline as little as the rest of the court, but takes issue with the court’s characterization of ordering the release of the Johnson County documents to the Attorney General as a sanction. He considers that to be a stretch and would prefer that it be cast as relief. A subtle point, but if he had his way the papers would not be saying ‘Court sanctions Kline’. He also implies that the tone is a bit much. Chief Justice McFarland goes further and in addition to siding with Davis criticizes the opinion’s discussion of future investigations into Kline as inappropriate.
The intersection of Kansas law and politics is a place for bare knuckle fighters (witness Paul Morrison’s sudden fall from grace) so perhaps Justice Beier is exacting a little payback against Kline for getting the US Supreme Court to trash the opinion she jointly authored in Kansas v. Marsh. Perhaps she is more motivated by the abortion cases themselves. Whatever the reason, her rhetorical flourishes may have been satisfying but reveal an obvious antipathy to someone before the court that perhaps should have prompted a recusal. Kline is unpopular enough that none of this will matter when she is next due for a retention election, but we will watch future opinions by Justice Beier for repeat performances and note them if and when they take place.
This post has also been submitted to the Kansas Progress.