TOPEKA ─ Closing arguments in day 12 of an attorney ethics hearing resulted in sharp and contrasting words between Kansas Disciplinary Administrator Stan Hazlett and former Kansas Attorney General Phill Kline.

“Kline’s statements under oath were false and misleading,” according to Hazlett, who was critical of Kline’s investigations of Kansas abortion clinics.

In a “passionate” two-hour rebuttal argument Kline said he had “not violated any rules of ethics” and accused Hazlett of being motivated by “politics.”

Hazlett brought two charges against Kline for violating attorney ethics from 2003 to 2008.

“Law enforcement does not need a raped child to come forward before we investigate,” Kline countered as to why his investigations proceeded without a complaint that a crime had been committed. Kline said his main concern was protecting children and “those who have no voice.”

Kline said the press focused on abortion while he was Attorney General, but he said he was focused on preventing child abuse.

Two Ethics Counts

Eight days of hearings were held in late February and early March on count one, and four days of hearings were held this week on count two in the ethics charges against Kline.

The first count against Kline involves his alleged mishandling of abortion reports, including accusations that he or his subordinates made false statements, misled officials, and even improperly appeared on the O’Reilly Factor.

The second count heard this week is about allegations of misrepresenting certain laws and misleading a grand jury in 2007 and 2008 when Kline served as Johnson County District Attorney.

Arguments Against Kline

Hazlett spoke first for about 45 minutes summarizing his case against Kline.

According to Hazlett Kline blamed everyone else and had not taken responsibility for mistakes.  Hazlett said Kline’s approach was that “everybody else” is at fault.

Hazlett said Kline blamed the grand jury for being “lazy” and “fractured,” criticized the special counsel, scorned the judge and claimed the presiding juror was biased against him.

Hazlett claimed Kline took no remedial actions to correct false and misleading statements he made under oath.

Hazlett mentioned the rebuke of Phill Kline by Supreme Court Justice Carol Beier from a 2008 case:

… Kline exhibits little, if any, respect for the authority of this court …

However, Hazlett failed to mention then Chief Justice Kay McFarland expressed this minority opinion about that rebuke of Kline:

“…the majority is more interested in reprimanding Kline for his attitude and behavior in the course of this litigation than in remediating the failure to leave a complete set of the investigation records for the incoming Attorney General. It appears to me that the majority invokes our extraordinary inherent power to sanction simply to provide a platform from which it can denigrate Kline for actions that it cannot find to have been in violation of any law and to heap scorn upon him for his attitude and behavior that does not rise to the level of contempt. This is the very antithesis of “restraint and discretion” and is not an appropriate exercise of our inherent power.”

While discussing aggravating circumstances Hazlett cited the appropriate sanction for Kline’s actions was disbarment.

Hazlett declined to make any statement or to take questions after the hearing.

Kline’s Defense

Instead of his attorneys, Kline gave his own closing arguments to the three-member panel in a PowerPoint presentation. He gave the panel a one-inch thick document as an outline to his response to the allegations against him.

Kline was given two hours for his final statement, but he had requested more time.

He said he had “not violated any rules of ethics.”

Kline said Disciplinary Administrator Hazlett did not make the case against him: “Clear and convincing evidence, with highly credible evidence, it’s not there.”

Kline maintained “the actions that I engaged in are consistent with what prosecutors do every day” and the “politics needs to be outside this door.”

While making his presentation Kline often stared directly at Hazlett.  At one point Jo Ann Butaud, chair of the hearing panel, said “I’m going to ask you to direct your comments to the panel and not Mr. Hazlett.”

In an interview after the hearing Kline gave this summary:

“To believe the complaint you have to find that Judge [Richard] Anderson is wrong.  Judge Anderson never filed a complaint against me; never found that I violated protective orders, and was very critical of Mr. [Paul] Morrison.  You have to find that Judge [David] King was wrong.  You have to find that Judge [Clark] Owens was wrong.  You have to find that the Kansas Supreme Court as it relates to key holdings was wrong, because they held for me.  You have to find that [Hazlett's] own investigators, Mr. [Lucky]  DeFrieze and Ms. [Beth]  Mudrick are wrong, because they said I did nothing wrong.”

“Whenever you have an investigation that has unique, unprecedented, illogical interpretations of law, and all of the voices around him [Hazlett] which are objective say it’s wrong, you have to doubt the investigation. You have to have serious doubt.”

“Conversely, in my investigation all the objective voices said I was right.  Judge Anderson, probable cause.  Judge [James] Vano, probable cause.  Judge [Eric] Yost, probable cause.  So, I think that’s pretty clear.  And it should cause pause and sufficient doubt that Mr. Hazlett has met his burden on any of these allegations.”

In other Kansas legal matters …

• Kline objected to Hazlett not revealing exculpatory evidence in the “Freize Report” any sooner.  “I didn’t know it existed” until it was found in documents in a related ethics case.
• Kline did not understand why a CD of Attorney General documents given to Dr. George Tiller’s attorney in a Wichita courtroom was never investigated.
• Kline objected to Paul Morrison as Attorney General refusing legal assistance to Kline that cost him $218,000 personally when he was sued in a secret Supreme Court case for actions Kline made as Attorney General.  Kline said Morrison had a conflict of interest in turning down that request since Morrison later entered the secret case against Kline.

Kline told the hearing panel that a different legal interpretation does not mean an intent to mislead.

Kline admitted that he “can get pretty passionate” and at one point received a note from his attorney to “stay cool” during his presentation.  At another point the court reporter asked Kline to “slow down” when he was talking too fast.  At other times Kline stood a few feet away from the hearing panel to get their attention.

Politics

Kline alleged the ethics hearing against him was political:

“The politics told me I should stop.  The politics were clear that I should have ended the investigation long ago if my focus was my political career.”

“For Mr. Hazlett, the politics was “get Kline” … the politics for Mr. Hazlett said ‘move forward.’”

“In a court of law politics has no place and [Hazlett] brought politics into that room and that is his failing.  That’s why this claim should not go forward.”

“His claim is essentially the very same words filed by criminal defendants in an effort to avoid criminal charges.  And he should have seen that. …”

“Mr. Hazlett made claims that my pro-life beliefs prevent me from investigating abortion clinics.  … I’m also anti-murder and I’ve prosecuted murders.  That’s a political statement. That’s not a legal ethics issue.”

“He said it was my ethical duty to tell the [Kathleen] Sebelius administration about all our information in the investigation. No, it’s not.  Law enforcement does not reveal investigations.  That’s a political statement Sebelius wanted to know because Sebelius wanted to fight the investigation. …”

“His claims are political in nature.”

Kline said the attorney ethics matter was “an ancillary attack to stop a legitimate criminal prosecution” of Planned Parenthood.

Critical of Attorney Ethics Process and Disciplinary Administrator

Kline:

“The real tragedy is justice has not been served as it relates to those charges.   Hundreds of children abused, and no one looked into their abuse.  That’s the tragedy here and that’s what we ought to be looking at.  The rest of this is political theater where unfortunately the ethics office got captured by a criminal defendant, and solely saw things from that perspective.”

Kline clarified he was talking about both Planned Parenthood and the late Dr. Tiller.

Kline said Justice Carol Beier had filed a complaint against him.  Kline didn’t believe there was “basic fairness” in the current system from his perspective:

“They [the Supreme Court] appoint the prosecutor.  They appoint the panel.  They hear the appeal.”

For basic fairness “you don’t have the complaining party hear the appeal.”

Next Step

A decision by the hearing panel may take weeks.  If the panel finds anything against Kline then the appeal goes to the Supreme Court, including Beier.

“All common sense says Justice Beier should recuse herself and not be involved in this any longer,” Kline said.

Kline concluded “I rest in the integrity of my decisions throughout all of this.  So, however this comes out, I have that.  The law and the facts are now out.”

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Documents Kline used in closing arguments (to be put online here when available):

• In Re Kline: The facts and the law (PowerPoint)
• Analysis of Allegations 1-16 with Evidentiary Support

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Related

• Kline: Discipline board missed its mark, Topeka Capital-Journal, July 22, 2011.
• Kline makes emotional appeal to disciplinary panel, Kansas City Star, July 22, 2011.
• Kline’s defense rests in attorney ethics case, Kansas Watchdog, July 21, 2011.
• Kline: ‘We were trying to be honest’, Wichita Eagle, July 21, 2011.
• Kline ‘frustrated’ when grand jury ended, Topeka Capital-Journal, July 21, 2011.
• Kline criticizes Johnson County grand jury, Kansas City Star, July 21, 2011.
• Testimony Ends In Ex-Kansas AG Kline’s Ethics Case, WIBW, July 21, 2011.
• At ethics hearing Kline says grand jury secret agreement with Planned Parenthood “killed the process”, Kansas Watchdog, July 20, 2011.
• Witness: Kline’s D.A. office ‘demonized’ abortion clinic, Topeka Capital-Journal, July 19, 2011.
• Kline ethics case: Who gave CD with documents from A.G.’s office to Dr. Tiller’s Attorney?, Kansas Watchdog, Feb. 25, 2011.
• Kline’s attorney ethics hearing, day 5, Kansas Watchdog, Feb. 28, 2011.
• Kline calls for recusals by Justices Beier and Nuss, Kansas Watchdog, March 3, 2011.
• Chronology of Phill Kline’s Ethics Hearing, Kansas Meadowlark, Feb. 25, 2011.
• Background reading to prepare for Kline ethics hearing, Kansas Meadowlark, Feb. 9, 2011.
• Former AG Phill Kline responds to attorney ethics complaint, Kansas Watchdog, April 29, 2010.
• Attorney disciplinary complaint filed against former AG Phill Kline, Kansas Watchdog, Jan. 19, 2010.
• Who is playing politics in the Kansas Judiciary by leaking information to the press?, Kansas Meadowlark, March 12, 2009.
• Kansas Chief Justice admonishes fellow justices for denigrating Phill Kline, Kansas Meadowlark, Dec. 5, 2008.
• Mystery surrounds release of letter from Kansas Attorney Disciplinary Administrator, Kansas Meadowlark, March 8, 2008.

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Contact: Earl F Glynn, earl@kansaswatchdog.org, KansasWatchdog.org

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