The Motion to Clarify
Kline is accused of intentionally deceiving the Kansas Supreme Court in his Motion to Clarify.
In 2005, the Kansas Supreme Court aggressively questioned Kline’s Chief of Staff Eric Rucker during oral argument in the abortion clinics’ lawsuit against Judge Anderson and Phill Kline. The Court was led by Sebelius appointee Justice Carol Beier.
During oral argument, J. Beier suddenly shifted and began asking Rucker about investigations unrelated to the abortion clinics . She wanted to know if Kline was investigating “live births.” J. Beier knew that Kline was investigating the abortion clinics for failure to report child rape, and as a matter of law, a 13 year-old who is pregnant is a victim of rape .
Beier reasoned that if a 13 year-old who had an abortion is a victim of rape, a 13 year-old who gave birth to a child is also a victim of rape. This reasoning is correct and Kline was investigating such circumstances. The problem is that those investigations were not relevant to the lawsuit by the abortion clinics, and moreover, those investigations were properly sealed by a lower court in order to protect the investigation and the child victims.
Now, Rucker was in open court and being asked by J. Beier about a sealed investigation which did not have relevance to the lawsuit by the abortion clinics.
Why was Beier asking the question? The question was political in nature. The abortion clinics, with permission by the Sebelius appointed Supreme Court, had run to the media stating that Kline was not concerned about children but was only interested in abortion. After all, where was Kline’s investigation of “live births,” they asked.
During Kline’s tenure as Attorney General, his office investigated and/or prosecuted more than 700 cases of adults sexually exploiting children. Kline served as the Co-Chairman of the National Violent Sexual Predator Apprehension Task Force for the National Association of Attorneys General and had authored new laws strengthening Kansas penalties on sexual predators. He also established a new multi-agency Cyber Crimes Task Force in Kansas City that was responsible for convicting more than 100 online child predators.
These investigations did not involve the clinics, were irrelevant to the case at hand and were secret. Kline’s office did not want to tip off the targets of child molestation investigations, and did not want the information to be public.
Therefore, at oral argument Rucker hesitated when trying to inform J. Beier that the investigation was secret. Undeterred, J. Beier demanded an answer stating that she wanted a “yes or no” answer – “have you subpoenaed hospitals…” Rucker said no. (View the entire transcript )
Rucker answered honestly. The AG’s office had not subpoenaed hospitals. But his answer, severely limited by J. Beier’s interruptions, left the impression the office had not used subpoena power when investigating “live births.” In fact, the office did obtain a subpoena for those records, but the subpoena was of KDHE, not the hospitals where the child victims gave birth.
Kline was seeking the names of the adults exploiting the children. Kline had to subpoena abortion records because the clinics were not reporting the child molestation, and Kline needed the names of the children who had abortions so that he could ensure their safety and prosecute the rapists.
Hospitals were reporting the names of the children who were pregnant to KDHE. Kline, therefore, did not need to subpoena the hospitals to get the names, he only needed to subpoena KDHE.
There were many reasons that AG Kline did not directly subpoena the hospitals for information already available at a state agency. A direct subpoena to a small hospital in a rural area could well start rumors and tip off the child rapists. This is untrue with an abortion clinic, where it is highly unlikely that a continuing relationship of any type is ongoing with the child patient or the child molester. Moreover, the abortion clinics were generally located in a different geographic location than the child.
Evidently, J. Beier did not understand or contemplate this distinction.
Kline decided to provide additional information to the Court, and accordingly filed a motion to clarify . The motion stated that the office was investigating live births. This is true and undisputed.
The motion also stated that Kline had obtained information from hospitals and that subpoena power was used to get that information. This is also true. The hospitals directly filed information with KDHE and Kline subpoenaed those KDHE records.
Lower court orders , however, prohibited Kline from revealing that the subpoena went to KDHE. If Kline had revealed who was subpoenaed, he would be violating a lower court seal record. Kline simply wanted to confirm that a “live birth” investigation was ongoing and that subpoena power had been used.
Accordingly, the motion read: “As part of this criminal investigation and/or inquisition, Mr. Kline has sought records and information from other mandatory reporters (of child rape) besides [the abortion clinics].” (Read the full Motion to Clarify )
This statement is true. The records at KDHE were filled out and completed and provided by hospitals and the hospitals are mandatory reporters.
“This effort has included subpoenas for records relating to live births involving mothers under the legal age of sexual consent.”
This statement is also true. Kline had used subpoena power. The subpoenas, however, did not go directly to the hospitals but rather to KDHE. Kline could not reveal that KDHE was the subpoena recipient because that information was sealed.
Kline’s statements are true, but J. Beier’s inference from the filing is false. J. Beier inferred that Kline had subpoenaed hospitals and that Rucker had lied when he said subpoenas were not issued to hospitals. J. Beier was wrong on both counts, but her misunderstanding was not due to Kline or Rucker. Rather, she made assumptions about an investigation unrelated to the case before her.
Now Mr. Hazlett is saying that Kline intentionally lied when filing his Motion to Clarify. The motion, however, is factually true and was intended to aid the Court in its understanding.
At most, this claim shows that there are two plausible interpretations of the motion. This cannot be the basis of a claim that Kline “knowingly made a false statement of fact.”
Additionally, whether Kline directly subpoenaed hospitals or KDHE is not material to any legal proceeding – it makes no difference to anyone. The abortion clinics were not affected by this investigation, and it was not relevant to any legal argument in any of the cases.
In 2005 when Kline filed the Motion to Clarify, the rules of ethics provided that a lawyer violated ethics if he knowingly made a false statement of “material” fact. KRCP 3.3 . Before a violation was found, therefore, there had to be a determination that the fact was important and relevant.
There is no evidence that this fact – whether Kline subpoenaed the hospitals directly or KDHE – is important or relevant. Mr. Hazlett, however, sidesteps this problem by applying a rule that did not exist at the time that Kline filed his motion.
Years after the Motion was filed, the Kansas Supreme Court changed the rule and eliminated the requirement that the fact be material. Hazlett now applies this rule retroactively to Kline’s conduct years previously. Hazlett ran into a problem, and so he simply changed the rules of the game after the fact.
If this seems to you to be unfair, you’re right – it is. In fact, it is so unfair that the United States Supreme Court has routinely condemned such efforts as a violation of due process .
If you can punish conduct which does not violate any rules by changing the rules after the conduct, you have unlimited and arbitrary application of government power. It’s similar to the House suddenly deciding that Kings are a higher rank than Aces because they hold three Kings while you’re sitting on three Aces.
Hazlett didn’t just apply new rules on this claim – he did on three claims. In three instances he applies rules that did not exist at the time Kline acted.
Finally, even if the fact is material, Kline’s statement is true. His office was investigating live births, had sought information provided by the hospitals, and his office used proper subpoena power.