Kansas Disciplinary Administrator

Uses Abortion Lawyers’ Motion

as Template for Complaint

against Phill Kline

Tiller’s Motion to Dismiss of Sept. 15, 2008

In re KlineFormal Complaintof Jan. 19, 2010

In re Kline Formal Complaint

Tiller Motion to Dismiss

Origin of the first sentence of ¶ 3.

Analysis of Complaint: ¶ 3, Sentence 1

Tiller Motion: In November, 2002, abortion-rights opponent Phill Kline was elected Kansas Attorney General.

Formal Complaint: In November of 2002, the respondent was elected Kansas Attorney General.

COMMENT

Notice this subtle editing change: “November, 2002” becomes “November of 2002”

To conform to the Complaint format, “Phill Kline” becomes “respondent”

Key omission: “Abortion-rights opponent” is dropped: too inflammatory for a disciplinary complaint.

Tiller Motion to Dismiss

In re Kline Formal Complaint

Origin of the second sentence of ¶ 3.

Analysis of Complaint: ¶ 3, Sentence 2

Tiller Motion to Dismiss In re Kline Formal Complaint

During his campaign In his campaign

pledged to interpret promised to interpret

more narrowly more strictly

predecessors previous Attorney Generals

Tiller Motion: During his campaign, Kline pledged to interpret the laws regulating abortion more narrowly than had his predecessors.

Formal Complaint: In his campaign the respondent promised to interpret the laws regulating abortion more strictly than previous Attorney Generals.

Notice the subtle changes:

In re Kline Formal Complaint

Origin of the first sentence of ¶ 4.

Tiller Motion to Dismiss

Analysis of Complaint: ¶ 4, Sentence 1

Tiller Motion to Dismiss In re Kline Formal Complaint

On April 2, 2003 Shortly after taking office

met with met with his then

to formulate a plan targeting Dr. Tiller.

to formulate a plan to target WHCS and Dr. Tiller.

Tiller Motion: On April 2, 2003, Kline met with Senior Deputy Attorney General Eric Rucker and Special Agent Tom Williams to formulate a plan targeting Dr. Tiller.

Formal Complaint: Shortly after taking office as the Attorney General for the State of Kansas, the respondent met with his then Senior Deputy Attorney General, Eric Rucker and Special Agent Tom Williams to formulate a plan to target WHCS and Dr. Tiller.

Minor differences:

In re Kline Formal Complaint

Origin of the third sentence of ¶ 4.

Tiller Motion to Dismiss

Analysis of Complaint: ¶ 4, Sentence 3

Tiller Motion to Dismiss In re Kline Formal Complaint

was recorded was captured

internal memo internal memorandum

Tiller Motion: This meeting was recorded in an internal memo.

Formal Complaint: This meeting was captured in an internal memorandum entitled "SPECIAL INVESTIGATION" dated April 2, 2003.

COMMENT

Parallelism continues. The Complaint picks up the date (omitted from sentence 1), and adds the memo title.

In re Kline Formal Complaint

Origin of the fourth sentence of ¶ 4.

Tiller Motion to Dismiss

Analysis of Complaint: ¶ 4, Sentence 4

Tiller Motion: According to the memo, the meeting was initiated in response to “allegations received by the A.G.’[s] Office that Dr[.] George Tiller . . . continues to perform abortions on females under 16 years of age without filing a report to competent authority concerning ‘abuse of a child’ as required by K.S.A. 38-1522(a).”

Formal Complaint: The investigation was initiated in response to “allegations received by the A.G.’[s] Office that Dr[.] Tiller… continues to perform abortions of females under 16 years of age without filing a report to a competent authority concerning ‘abuse of a child’ as required by K.S.A. 38-1522(a).”

COMMENT

These two sentences are almost indistinguishable. Apart from the introductory phrase in the Tiller motion, and substitution of the word “investigation” for “meeting,” only minor editing differences are discernible. The added brackets and ellipses in the quote are the same in the motion and the complaint.

In re Kline Formal Complaint

Origin of the seventh sentence of ¶ 4.

Tiller Motion to Dismiss

COMMENT

The underlined portions of the sentences are the same. Let’s look at the circled footnotes . . .

In re Kline Formal Complaint

Origin of the lengthy footnote in ¶ 4.

Tiller Motion to Dismiss

Analysis of the footnote in ¶ 4

The Complaint incorporates verbatim from the Tiller Motion to Dismiss a 138-word footnote describing the Kansas abortion reporting law.

Only two trivial differences exist. The Formal Complaint incorrectly omits the article “a” in the second quotation from K.S.A. 65-445(c) (“upon a showing”), and closes up the space between the lettered subsections in the final citation to the code.

To set out and analyze additional parallels between the Tiller Motion to Dismiss and the Formal Complaint would be tedious and cumulative. Many, many more examples can be cited.

That the Disciplinary Administrator used the Tiller motion as a template for large portions of the Formal Complaint is beyond dispute.

Judge Clark Owens heard six days of testimony on the Tiller motion before entering his order of denial in February, 2009. Undoubtedly the Disciplinary Administrator intends to call many of the same witnesses who testified in that proceeding.

Preclusion law prohibits relitigation of the Tiller motion in this hearing. The facts found by Judge Owens in his Order on the motion control this proceeding.*

*On the application of collateral estoppel to attorney disciplinary proceedings, see In re Abady, 800 N.Y.S.2d 651, 658 (App. Div. 2005).