Judge Refuses to Open Proceedings in Abortion Records Case

By: Hearings and other court proceedings in Attorney General Phill Kline's ongoing dispute with two abortion clinics over access to their patients' records will remain closed, a Shawnee County judge has ruled.

District Judge Richard Anderson denied a request to open the proceedings to the public, filed a week ago by The Associated Press and the Kansas Press Association, which represents newspapers across the state. Anderson also warned the parties against publicizing the case further.

"We're disappointed with Judge Anderson's decision," Randy Picht, AP's bureau chief for Kansas and Missouri, said Monday. "And we're considering our options."

Kline is attempting to glean information from records held by clinics operated in Wichita by Dr. George Tiller and in Overland Park by Planned Parenthood of Kansas and Mid-Missouri. In 2004, at Kline's request, Anderson issued subpoenas for 90 records total, but the clinics asked the state Supreme Court to intervene. It did, sending the case back to Anderson.

Anderson issued a three-page order Thursday, but it did not become public until Monday, when AP obtained a copy from its attorney. The issue of openness arose May 5, when an AP reporter attended a hearing Anderson had presumed would be closed.

Although the dispute between Kline and the clinics has generated national attention and the Supreme Court ruling, Anderson still is presiding over what state law calls an inquisition, in which a prosecutor can compel people to answer questions or produce records.

"The court recognizes there are significant intractable political features inherent in this proceeding," Anderson wrote. "Neither the investigating law enforcement officer nor any other person subject to the jurisdiction of the court will be permitted to turn the investigation into a means to shape public opinion about abortion policy."

In sending the case back to Anderson in February, the Supreme Court directed the judge to be more stringent about protecting patients' privacy but leaving open the possibility that Kline would get at least some information.

Kline has argued he needs information from the records - but not identifying information - to investigate potential child rapes and possible violations by the clinics of state abortion laws. The clinics have accused Kline of being on a fishing expedition.

Neither spokesmen for Kline, nor the clinics, were available for comment immediately. Mike Merriam, a Topeka attorney representing the two news organizations, said Anderson should have had another hearing, to balance the interests of the clinics and Kline in keeping proceedings closed against the public's interest.

During the May 5 hearing, both attorneys for the clinic and two Kline deputies argued that proceedings should remain closed. The clinics suggested patients' privacy could be in jeopardy if they were opened; Kline's office argued that criminal investigations aren't normally public.

Neither side released the written arguments it later filed with Anderson, citing a gag order he imposed in 2004. Merriam said he also didn't receive copies.

While Anderson acknowledged that the Kansas law dealing with an inquisition is silent on whether proceedings are open, he added, "Customarily, inquisition proceedings have been closed to the public."

Anderson called the May 5 hearing to consider issues related to "management of the subpoenaed records," the judge said in his order. When Anderson spotted the AP reporter in his courtroom, he put those matters on hold to consider whether proceedings should be open.

The clinics' attorneys said they hadn't contacted any news organizations about the hearing, but Kline's chief deputy, Eric Rucker, acknowledged that someone in Kline's office might have. That statement caught Anderson's notice.

"At all times before this court, the attorney general has maintained that the investigation should be pursued out of the view of the media and with utmost respect for privacy of patients," Anderson wrote. "Thus, the court is perplexed by the apparent invitation to the hearing extended by the attorney general."