Attaching a Sealed Record to a Brief

Kline is accused of attaching a sealed document to a public brief in disregard of women’s privacy.

Mr. Hazlett claims that Phill Kline’s office “prejudiced the administration of justice” when its public brief presented legal arguments that had previously been made to a lower court. The claim is as odd as it sounds.

In the fall of 2004, Kline’s investigators presented evidence to Judge Richard Anderson. The evidence appeared to show abortion clinics in Kansas were failing to report child rape in violation of Kansas law. Sure enough, the judge reviewed the evidence and found probable cause to believe that the records contained evidence of crimes. He therefore issued a subpoena to the clinics for their records. The clinics fought the subpoena.

Judge Anderson overruled the clinics’ motion to quash the subpoenas and ordered that the they produce the records to his court by October 15, 2004.

In response, the clinics refused production and instead sued Judge Anderson and Mr. Kline in what is called a “mandamus” action . Such lawsuits are filed directly with the Kansas Supreme Court.

Typically, the target of a criminal investigation does not have the ability to sue in that fashion. If the target of a criminal investigation takes issue with subpoenas or evidence, the target files a Motion to Suppress the evidence at any resulting criminal trial. If convicted, the defendant then has a right to appeal the conviction and seek to have the conviction overturned and the evidence suppressed.

This approach is necessary because if a criminal defendant could immediately appeal each and every lower court decision to order the production of evidence during an investigation, investigations would never end and there would be endless appeals.

Yet, the Kansas Supreme Court allowed this novel challenge, and during the new mandamus lawsuit the Court additionally prevented the execution of the subpoenas.

Almost all crimes have what is called a statute of limitations. This means that after a specific period of time the government is prohibited from bringing a criminal prosecution – even if the evidence exists that a crime was committed. The statute of limitations on the failure to report child sexual abuse was two years at the time.

Kline’s requested subpoenas related to abortions that were performed in 2002 and the first six months of 2003. The Sebelius Administration had already delayed the investigation for months as it produced false information and then delayed production of documents in response to previous subpoenas. The clock was ticking.

Now the Kansas Supreme Court – comprised mostly of Sebelius appointees – delayed the investigation further. They passively held onto the case until January 2006, long after the statute of limitations had run its course.

In other words, the Kansas Supreme Court killed the entire investigation by simply doing nothing.

Kline, however, saw this coming, and acted accordingly. In the Spring of 2005, he added an extension of the statute of limitations into an a large cr ime bill he proposed to the Kansas legislature. The bill enhanced efforts to crack down on methamphetamine and also strengthened penalties on child predators. The bill was several pages long and Governor Sebelius did not catch the extension of the statute of limitations. She signed the bill. Without this extension, the entire investigation would have been lost.

Now unable to ignore the investigation anymore, the Court did something else to harm it – it ordered that the investigation be public.

Attorney General Kline did not want the investigation to be public for several reasons. The public focus could unnecessarily frighten witnesses, invade privacy and harm the still unknown victims. Despite these very real dangers, the abortion clinics filed a motion with the Kansas Supreme Court to make the investigation public, reasoning they wanted to notify their “patients.”

Kline informed the Court that such notification could prove harmful. He explained how it is unlikely that the clinics would directly notify the child patient, who was only 10, 11, or 12 years old. More likely, the clinic would speak to a parent or guardian. If that child patient had been raped and the rape not reported, it was a good likelihood that someone with authority over the child – a stepfather, or uncle perhaps – was the rapist. Kline informed the court that the clinics would likely be telling the rapist that the AG was investigating their rape.

Nevertheless, the Court granted the clinics’ motion and then ordered that the argument on the case would be open to the public, while the record from the lower court would be closed.

The clinics filed their brief and claimed that Kline was seeking the un-redacted records of 90 women and children, implying that Kline wanted all patient names and other very intimate information. Conversely, Kline had already arranged for the names of adult patients to be removed by Judge Anderson before the records were provided to Kline’s office. Kline’s staff decided to attach a portion of the hearing transcript before the lower court to the brief to demonstrate this point.

The attachment only contained legal argument and the judge’s statement that Kline supported privacy protections for the patients.

Before attaching the portion of the hearing transcript to the brief, Kline’s staff called the Court to determine if the attachment was appropriate considering the court’s order that oral argument would be public but the record would be sealed. The Kansas Supreme Court refused to give guidance to Kline’s office.

Judge Anderson stated that any protective order sealing such information was “moot” because of the Supreme Court’s order that the briefs and argument would be public. “The investigation was no longer secret [due to the Supreme Court order and] the purpose of the nondisclosure order had become moot…the attachment [only] contained legal arguments and not specific references to patients.” (Anderson testimony, pages 645, line 15-646, line 1).

Nevertheless, the clinics filed a motion to hold Kline in contempt for the decision to attach the transcript, claiming the information was highly confidential and in violation of the Supreme Court order sealing the lower court record.

The Kansas Supreme Court rejected the clinic’s motion to hold Kline in contempt. The Court found that the attachment only contained legal argument and that as a result, it did not prejudice the administration of justice.

The Court’s decision was clear: “no prejudice resulted from [Kline’s] conduct.”

That Supreme Court decision came down four years ago. Now Mr. Hazlett has filed the same complaint against Mr. Kline, claiming that attaching the documents did, in fact, “prejudice the administration of justice.”

Mr. Hazlett had his answer before he filed his claim – it had already been denied.