STANTON A. HAZLETT, #09531
Disciplinary Administrator and
ALEXANDER M. WALCZAK , #07216
Deputy Disciplinary Administrator
701 SW Jackson, First Floor
Topeka, Kansas66603
Phone (785) 296-2486
Fax (785) 296-6049
IN THE SUPREME COURT OF KANSAS
BEFORE
THE KANSAS BOARD FOR DISCIPLINE OF ATTORNEYS
IN THE MATTER OF )
)
)Case No. DA10,088 and DA10,598
PHILLIP D. KLINE,)
RESPONDENT.)
______)
FORMAL COMPLAINT
COMES NOW Stanton A. Hazlett,Disciplinary Administrator, pursuant to the Supreme Court Rules Relating to Discipline of Attorneys and for hisformal complaint against Phillip D. Kline, Respondent, alleges and states:
1. Phillip D. Kline, is an attorney at law, Kansas Attorney Registration No. 13249. His last registration address with the Clerk of the Appellate Courts of Kansas is Liberty University, 1971 University Boulevard, Lynchburg, Virginia 24502, Telephone No. (434) 592-5328. The respondent was admitted to the practice of law in the state of Kansas on September 30, 1987.
COUNT I – Case No. DA10,088
2. The respondent, at the time of the alleged violations of the Kansas Rules of Professional Conduct, held the public office of Attorney General for the State of Kansas, and later as District Attorney for Johnson County, Kansas. It was in these capacities that the respondent committed violations of the Kansas Rules of Professional Conduct (hereinafter referred to as KRPC)as well as breaches of trust of his public office during investigations into possible criminal conduct by Comprehensive Health of Planned Parenthood of Kansas, and Mid-Missouri, Inc. (hereinafter referred to as CHPP) and Women’s Health Care Services, P.A., (hereinafter referred to as WHCS) formerly operated by Dr. George Tiller. As Attorney General for the State of Kansas the respondent was responsible under the KRPC for the actions and conduct of the lawyers and non-lawyers in the Attorney General’s Office participating in the investigation of CHPP and WHCS. The respondent acknowledged his responsibility for his employees’ conduct in an appearance before the Kansas Supreme Court on June 12, 2008. At that argument, in response to a question from Justice Carol Beier about his responsibility for his subordinates, the respondent stated the following: “In no way am I trying to evade responsibility, Your Honor.”
3. In November of 2002, the respondent was elected Kansas Attorney General. In his campaign the respondent promised to interpret the laws regulating abortion more strictly than previous Attorney Generals.
4. Shortly after taking office as the Attorney General for the State of Kansas, the respondent met with his then Senior Deputy Attorney General, Eric Rucker and Special Agent Tom Williams to formulate a plan to target WHCS and Dr. Tiller. Agent Williams was the investigator in charge of investigating the cases against WHCS and CHPP. This meeting was captured in an internal memorandum entitled “SPECIAL INVESTIGATION” dated April 2, 2003. The investigation was initiated in response to “allegations received by the A.G.’[s] Office that Dr[.] Tiller… continues to perform abortions of females under 16 years of age without filing a report to a competent authority concerning ‘abuse of a child’ as required by K.S.A. 38-1522(a).” The following is also stated in the document, “Based on information received by this office it is assumingthat Dr. Tiller performed one or more of the underage 15 abortions. Receipt of the authentic documents and records or other credible information may identify one or more other abortion providers in violation of the reporting requirements.” The memo reflects the respondent’s intent to “access information submitted to KDHE by abortion providers.”[1] Finally, the document reflects the Attorney General’s office intention to tap potential confidential sources to obtain information within both the Kansas Department of Health and Environment (KDHE) and Social Rehabilitation Services (SRS).
5. On June 18, 2003, the respondent issued Attorney General Opinion number 2003-17. That opinion held as a matter of law that a pregnant child under the age of 16 has been abused because intercourse with children under 16 is unlawful. Consequently, according to the respondent, the fact of a child’s pregnancy alone
triggered the reporting requirement of K.S.A. 38-1522. The respondent’s opinion overturned a decade old opinion of former Attorney General Bob Stephan that concluded a case by case analysis must first be conducted as to whether an injury has occurred before there is the triggering of the reporting requirements.
6. On July 15, 2003, Steve Maxwell, Assistant Attorney General, and Williams authored a “CONFIDENTIAL MEMO” to the respondent and Rucker, discussing their perceived “need to convene a Judicial Inquisition” to compel the production of KDHE records they wanted. Maxwell acknowledged in this memo the following: “There potentially exists a legal obstacle to initiating a Judicial Inquisition due to the absence of a definite complaint or allegation that a medical provider knowingly failed to report a specific incident of sexual abuse as statutorily defined by K.S.A. 21-3503(1)(a).” To implement their plan, Williams requested and received from SRS information about abuse reports involving children under 16 from January 2002, until June 2003. Maxwell, in the confidential memo, explained that the true nature of the inquiry would not be divulged to SRS: “If asked to explain the nature of the inquiry, SRS will be told that the Attorney General desires to determine if there is a serious latent sexual abuse problemin Kansas.” The information was requested by Williams. Later, in an e-mail dated July 19, 2003, from Williams to Rucker, Williams informed Rucker of his success in keeping the true nature of the inquiry from SRS, another state agency.
“I have stayed away from the underlying issue that we are interested in. She made reference to the AG’s recent opinion. I kept the conversation in very general terms by mentioning the recent absconder initiative that primarily focused on sex offenders and told her I was attempting to determine the nature and magnitude of the current sex abuse problem in Kansas with children being the victims. There was nothing said to suggest that SRS will resist providing the requested information.”
The respondent approved of the deception visited upon SRS by the Attorney General’s Office. Later, while testifying in Wichita in a hearing to dismiss criminal charges against Dr. Tiller, the respondent was asked about the tactic of misleading SRS to obtain information regarding child abuse from that agency. The respondent testified that, “It is often that you do not reveal to witnesses the nature of an investigation.” Additionally, Williams requested and received from the Office of the Sedgwick County District Attorney information showing the number of abuse reports involving children under the age of 16 for the period of January 2002, through June 2003, maintained by the county’s Exploited And Missing Child Unit (EMCU).
7. In the Fall of 2003, the respondent initiated an inquisition under K.S.A. 22-3101 to aid an investigation into the violations of Kansas law by CHPP and WHCS. The inquisition was filed in Shawnee County, Kansas. (Case No. 04-IQ-03) Initially, the inquisition was opened based on representations made by the Attorney General’s office to the Shawnee County District Court that mandatory reporters were not complying with K.S.A. 38-1522 by not reporting suspected child abuse. Later, the focus of the inquisition was expanded to include allegations of K.S.A. 65-6703 (late term abortion restrictions) and K.S.A. 21-3711 (making a false writing). Eventually, as a result of the inquisition, the respondent sought and received subpoenas for patient files of 90 females who obtained abortions at CHPP and WHCS.
8. An application for aninquisition in Kansas is governed by K.S.A. 21-3101(1). Under Kansas law, “If the Attorney General… is informed or has knowledge of any alleged violation of laws of Kansas, such person may apply to a district judge to conduct
an inquisition. An application for an inquisition shall be in writing, verified under oath, setting forth the alleged violation of the law.” The respondent designated Maxwell as having primary responsibility for the inquisition. Rucker and respondent had supervisory authority over Maxwell. On October 29, 2003, Maxwell prepared, swore to and signed an “Application to Open Inquisition” before Shawnee County Chief District Court Judge Richard D. Anderson. In his application, Maxwell swore that the respondent’s office was seeking to “discover whether child abuse is not being reported properly under K.S.A. 38-1522.” Maxwell, in support of his application, attached an affidavit prepared by Williams that alleged a “gross disparity” between the SRS numbers of 175 reported Sedgwick County abuse incidents and the report of 1,884 abuse incidents from the Sedgwick County Exploited and Missing Child Unit. In order to convince the court that abuse was being underreported to SRS, Maxwell first had to convince the court that the SRS and EMCU numbers were correct. Chief Judge Anderson, relying on the statistical information provided by Maxwell and Williams, under the supervision of the respondent, approved Maxwell’s Application for Inquisition on October 29, 2003, and ordered SRS to provide the records to Maxwell.
9. On November 6, 2003, approximately one (1) week after the Application to Open Inquisition was filed,Maxwell was advised by Rucker in an e-mail that there could be a problem with respect to the SRS statistical information regarding abuse. Maxwell’s response to Rucker’s warning was as follows:
It shouldn’t affect us one way or another. They are the ones that misrepresented the numbers. We used what they gave us. At some point, we may have to clarify with the judge if and when we go back for further inquisition subpoenas. At that point, we can tell him what happened. Tom and I are going through e-mail tomorrow to try to develop a plan of action.
Williams, although he knew the SRS figures were “obviously flawed” swore in his affidavit that there were 1,709 incidents of suspected abuse not reported that should have been. Maxwell knew that the statistical information contained in his representations to the court were misleading, however, he did not take any action to correct his representations or correct the misunderstanding of the court. Chief Judge Anderson relied on the information provided to him by Maxwell and approved by the respondent in making decisions to open the inquisition and issue a subpoena to SRS.
10. Shortly before Maxwell opened the inquisition, a number of professionals subject to the reporting requirements filed a federal lawsuit, Aid for Women, seeking to enjoin all Kansas County and District Attorneys from enforcing the reporting laws as interpreted by the respondent in his Attorney General Opinion 2003-17. While the suit did not initially name the respondent, the respondent was added as a defendant later in the proceedings. Both Maxwell and the respondent participated in the defense of the suit.The respondent testified at an evidentiary hearing in the case. Maxwell acted as counsel for the defendants in the case.
11. On May 26, 2004, Maxwell requested that Chief Judge Anderson issuea subpoena of records from KDHE and in response KDHE moved to quash the subpoena on the grounds that it sought “highly confidential and protected medical information” without reasonable cause. Chief Judge Anderson denied KDHE’s motion on June 28, 2004. In the affidavit presented to Chief Judge Anderson to obtain this subpoena, Williams acknowledged that the previous statistical information provided to the court was “obviously flawed.”
12. On July 26, 2004, the federal district court issued a preliminary injunction in Aid for Women, enjoining all Kansas County and District Attorneys from enforcing the reporting statutes as to “incidents of sexual activity between adolescents under the age of 16 and persons of similar age in which injury is not reasonably suspected.” Aid to Women vs. Foulston, 327 F. Supp. 2d 1273, 1275, 1288 (D. Kan. 2004). Later in April of 2006, the federal district court issued a permanent injunction against the Kansas Attorney General and all district and county attorneys in Aid to Women vs. Foulston, 427 F. Supp. 2d 1093 (D. Kan. 2006).
13. Meanwhile, KDHE complied with the subpoena. KDHEthen disclosed in a letter to the Attorney General that CHPP and WHCS were themedical providers for certain late term abortions. Chief Judge Anderson issued subpoenas for thirty (30) patient files from CHPP and sixty (60) patient files from WHCS. The clinics objected and moved to quash the subpoenas, raising patient privacy concerns. Chief Judge Anderson denied the motions and ordered the production of the patient files. The clinics filed a petition for a writ of mandamus in the Kansas Supreme Court. The Supreme Court stayed Chief Judge Anderson’s production order, sealed the appellate record, and ordered further briefing.[2]
14. In February of 2005, under the respondent’s supervision, Maxwell filed an Application for Subpoena directed towards La Quinta Inn in Wichita, Kansas. By this subpoena, Maxwell and the respondent sought motel records involving patients of WHCS who stayed at the La Quinta Inn while under Dr. Tiller’s care. Chief Judge Anderson issued an Order for the production of the following records:
[A]ll guest registration records, handwritten and electronic for all guests/patrons at La Quinta Inn and Suites…Wichita, Kansas for the period of January 1, 2003 to present that received a medical discount for lodging. The records should identify the name, address and telephone number of the individual making the reservation, if other than a guest/patron.
Further,the records should identify the number of guests in the room or rooms anda detailed record of all telephone calls made to or from the room and telephone calls billed to the room.
In addition, provide records identifying rooms rented to or used by Dr. GeorgeTiller, Women’s Health Care Services, Inc., and/or any employee or independent contractor of Women’s Health Care Services, Inc. for the period of January 1, 2003 to present.
15. On or about February 21, 2005, La Quinta Inn provided the information requested in the subpoena to the Attorney General. Agent Jared Reed of the Attorney General’s Office compared the La Quinta Inn records for adult and underage patients with the KDHE abortion records. The KDHE records, while redacted as to the patient’s name, identified the WHCS patient’s state and city of residence and date of abortion. By comparing the two (2) sets of records it was possible for Agent Reed to identify the names of adult abortion patients and/or the traveling companions of underage abortion patients of WHCS. The document created as a result of this effort lists 221 potential adult-patient names, 221 adult-patient addresses (street, city, and state), and 221 adult-patient telephone numbers. The comparison was completed byReed by April 13, 2005.
16. Also, between January 2005, and the Fall of 2005, the respondent ‘s subordinates engaged in an effort to identify visitors and employees of Dr. Tiller’s clinic by staking out the clinic, following visitors and employees to their vehicles and recording automobile license plate numbers. Attempts were made to run the numbers through state agencies in order to identify the name of the driver.
17. The respondent was aware of the effort by his subordinates to seek the identities of patrons of the La Quinta Inn who were either patients or traveling companions of patients of WHCS, as well as, the effort to seek the identities of visitors and employees of WHCS.
18. On March 3, 2005, the Attorney General’s office filed its brief with the Kansas Supreme Court in Alpha Medical Clinic v. Anderson. Rucker and Maxwell signed the brief for the Attorney General
19. Rucker represented and defended the respondent at oral argument in the mandamus action in Alpha Medical Clinic v. Anderson before the Kansas Supreme Court on September 8, 2005.[3] During the oral argument, Rucker made three (3) false statements of fact to the Court in response to questions from the Court. Neither Ruckernor the respondent corrected the false statements made to the Court. The three (3) false representations to the Court are:
A. As of September 8, 2005, the Attorney General’s Office had subpoenaed records of live births from KDHE and had begun review of the records, but had taken no other steps to investigate whether any other mandatory reporters were reporting teen pregnancies to SRS as evidence of child abuse. Nevertheless, Rucker assured the Court that “I can indicate to the Court, without reservation, that we have looked into live births.” Alpha Medical Clinic v. Anderson, Kan. Sup. Ct. No. 93,383 (oral argument Sept. 8, 2005, at transcript page 14, lines 11-16). Rucker further advised the Court that the respondent’s office was investigating, not subpoenaing, the records from the hospitals.
B. Rucker, in response to questions from the Court, repeatedly advised the Court that the “Attorney General and the State of Kansas are not pursuing the identity of any adult woman who had obtained services by either of the clinics, nor will we ask for that identity.” Rucker’s representation is contrary to efforts that began in January of 2005, to identify visitors and employees of Dr. Tiller’s clinic as well as the effort beginning in February of 2005, to seek the full identities of patients and/or companions to patients of Dr. Tiller residing at La Quinta Inn, and the effort to match that information with records of abortion patients from KDHE.
C. Rucker falsely advised the Court that his office did not know the identity of children who had abortions at the two (2) clinics in the following exchange:
JUSTICE ALLEGRUCCI: “So you have actual evidence, you already know who these children are?”