10

The Motion to Enforce the Grand Jury Subpoena

This claim has two parts: Public and Permission.


Public

First, Mr. Hazlett claims that it was improper for Mr. Kline’s staff to publicly file a motion to enforce the only subpoena issued by the Grand Jury to Planned Parenthood. This part of the claim logically fails, because the information contained in Kline’s motion was already public. The arguments on Planned Parenthood’s Motion to Quash were already public, and previous motions and arguments regarding enforcement of the subpoena were presented in open court.

The particularly troubling aspect of this claim is that it was not presented or discussed at hearing. Mr. Hazlett’s theory at the hearing was that it was a violation of ethics for Kline to file the brief without permission of the grand jury. Mr. Hazlett only brought up his public issue after the hearing. Accordingly, Kline did not have the ability to defend this claim at hearing. Because he had no notice of the charge and no opportunity to defend himself, Mr. Kline’s due process rights were violated.

Mr. Hazlett did recognize this due process problem, because he attempted to cure it - through a falsehood. In his brief, Hazlett quotes his formal Complaint as stating that Kline violated ethics through the "public" filing of this motion. His complaint, however, does not include the word "public."


Permission

At hearing, Mr. Hazlett claimed Kline violated ethics when he filed a brief without the permission of the Grand Jury.

To understand this claim, we must first understand the role and authority of the Grand Jury. First, the Grand Jury does not have the authority to direct the District Attorney to seek approval for his filing of pleadings. Juror Hensel acknowledged this lack of authority when she made her request.

“Second is a request, and while we understand that we don’t have the authority to issue this, we are asking the DA’s office and anyone else that might submit any documents to the court in our name, that the Grand Jury be advised of those prior to the filing.”

(compare the transcript to her complaint)

Her statement to the court was very different from what she claimed later:

“On February 27, 2008, the Grand Jury specifically directed Christopher Pryor, of the District Attorney’s Office,
the office was not to file any brief related to the January 7, 2008 subpoena without the approval of the Grand Jury.”

(compare statements)

Hensel’s statements on the record were framed as what she called a “general request.” She requested that if anyone filed pleadings in the Grand Jury’s name, that they be advised. The pleading at issue here – Kline’s Motion to Enforce – was not filed in the Grand Jury’s name. It was filed in the name of the Office of the District Attorney. Even if the motion had been filed in the Grand Jury’s name, the Grand Jury knew it did not have the authority to demand what Hensel requested. Kline had the authority, both legally and ethically, to file this motion on his own.

Note, the subpoena Kline was trying to enforce through his motion was the one the Grand Jury itself had requested – they wanted more information from Planned Parenthood.

The Grand Jury voted to issue the subpoena January 7, 2008, and refused to withdraw it even after Planned Parenthood fought back with a Motion to Quash. The subpoena was rescinded much later on March 3, 2008, after it was clear that Judge Moriarity would never rule on its validity. (In that interim, the judge never enforced the subpoena, and he never ruled on Planned Parenthood’s Motion to Quash.)



  • The “public” claim fails because the information contained in Kline’s motion were already public.

  • The “permission” claim fails, because Kline did not need permission to file his own motion.

  • Finally, this claim as filed violated Kline’s constitutional Due Process rights.