Pro-life attorneys who filed a lawsuit against Planned Parenthood have been hit with potentially crippling sanctions by a judge who ruled their charges were “frivolous.”
San Diego public-interest lawyers Richard Ackerman and Gary Kreep, along with Kreep’s United States Justice Foundation, allege Planned Parenthood routinely ignores its legal obligation to report cases in which it knows physical or sexual abuse of minors is occurring, citing an in-depth study, public records and the organization’s own records.
But a San Diego Superior Court judge agreed with Planned Parenthood, ruling last Friday the charge is “frivolous” and awarding Planned Parenthood attorneys $15,000.
The Planned Parenthood lawyers can collect the money from Ackerman, Kreep or USFJ, or from all three parties.
An appeal has been filed, but Kreep said one of the Planned Parenthood attorneys warned he might come to the USJF office and start hauling away furniture and computers and shut down the operation.
“Planned Parenthood and their attorneys have been talking for years about trying to put us out of business, and with this decision, which is a wrong decision, they could be successful,” Kreep told WorldNetDaily.
A hearing is scheduled for Dec. 19.
Kreep noted USJF has been defending pro-life picketers in criminal prosecution and civil litigation for over 20 years.
“We do not charge for our services and rely on tax deductible donations to pay our staff and to fund our work,” he said in a statement. “We now need the help of the pro-life community.”
On Aug. 29, San Diego Superior Court Judge Kevin A. Enright threw out two counts of USJF’s 15-count lawsuit against Planned Parenthood Federation of America and two Southern California affiliates, Planned Parenthood of Los Angeles and Planned Parenthood of San Diego and Riverside Counties.
One count charged the clinics knew physical or sexual abuse of hundreds of children was occurring but did not report it. The other charged them with unlawful business practices.
Subsequently, Planned Parenthood affiliate lawyers filed for sanctions against Ackerman, Kreep and USJF totaling more than $30,000, contending their charges were “frivolous” because he had no evidence to back up their claims.
Ackerman told WorldNetDaily in October if he were to be sanctioned, he and his wife would have to consider filing for bankruptcy, although he did not regret his actions. His efforts, he said, were on behalf of thousands of children whose abuse is ignored.
“If a judge is going to sanction me for doing what is right, I would rather pay the [money] than to have not done the right thing,” he said. “I stand by what I did.”
Planned Parenthood attorney James McElroy, who filed the sanctions suit on behalf of the San Diego-Riverside affiliate, contended Ackerman had no basis for his charges.
“Mr. Ackerman has not one shred of evidence, not one infinitesimal piece of evidence to support his outrageous claims,” McElroy told WND in October.
Ackerman, who now works with the public-interest firm Lively, Ackerman & Cody, was not permitted to present his evidence before his charges were dismissed because the judge was ruling whether the complaint, as a matter of law, stated a cause of action. He was given that opportunity Dec. 5, however.
McElroy insisted it is not Planned Parenthood’s corporate responsibility to report abuse, but rather the physician’s. But in any case, he argued, the organization has complied with the law.
“There are occasions when Planned Parenthood sees under-aged patients who have had sexual contact with someone in a situation that makes it reportable, either because of the person’s age or because of force involved,” he said. “And from everything I know, every single time that has happened, there is a report.”
In his dismissal of the charges, Enright ruled that applicable statutes apply to individuals, not corporations, and that Planned Parenthood is not subject to the relevant parts of the Business Code because it is a corporate entity “not licensed to practice medicine,” though Ackerman argues it provides abortions, dispenses drugs and recruits medical personnel.
If the ruling is allowed to stand, Ackerman contends, youth sports leagues, churches, public schools, social service agencies and many other employers effectively can avoid responsibility for failing to report known or suspected cases of sexual and physical abuse.
“Thousands, if not millions, of cases of sexual and physical abuse will likely go unreported,” he said, “and many children will simply be returned to the molesters that got them pregnant or gave them” a sexually transmitted disease.
‘Sensational allegations’
McElroy accused Ackerman of airing his “sensational allegations” in the press, including going on the Fox News Channel’s “O’Reilly Factor” program and issuing press releases with material “you would expect to read in the National Enquirer, without doing the basic research a lawyer does.”
Ackerman insists, however, he has six boxes of evidence, including Planned Parenthood records showing the organization treated girls as young as 5 years old.
California law requires the reporting of suspected sexual activity by children under 15, and Ackerman contends that by checking local police records, Planned Parenthood branches in Southern California failed to report on at least 292 known cases.
McElroy insists the police department is not where such reports are filed, and furthermore, no one can walk in and get them. Ackerman maintains he did obtain abuse reports from the police and found none that correspond with Planned Parenthood’s records of treating under-aged patients.
Other evidence cited by Ackerman includes a massive study by the Texas-based pro-life group Life Dynamics, which telephoned more than 800 clinics nationwide using a researcher posing as a 13-year-old girl who claimed to have been impregnated by a 22-year-old boyfriend. In 91 percent of the calls, clinic workers assured the impersonator the statutory rape would be concealed, the Texas group said.
Ackerman says he has evidence Planned Parenthood instructed affiliates to be prepared for calls from Life Dynamics and issued “talking points” in case they were contacted by the media. A May 8, 2002, internal e-mail from Planned Parenthood’s litigation director instructed affiliates, “You should institute a procedure to ensure that such phone calls are routed to someone who understands your state’s reporting obligations, and who can respond in such a way that would not suggest that your affiliate would not comply with applicable state laws.”
McElroy questions the integrity of Life Dynamics and argues the group broke California law by taping the calls without the knowledge of both parties, then lied to the receptionists.
The receptionist is not a mandated reporter, he contended, and, “What are we reporting? Somebody calling on the phone who is lying?”
Ackerman also presents as evidence a statement signed by Planned Parenthood San Diego-Riverside employees acknowledging “the law requires me to report any known or suspected instances of child abuse.”
He has a copy of a letter written by California attorney general Bill Lockyer specifying reporting requirements for pregnant girls younger than 16.
‘He wants to destroy me’
USJF’s Kreep thinks McElroy harbors ill intent.
“Mr. McElroy has made it clear that he wants to destroy Rich, he wants to destroy me, and he wants to destroy USJF,” Kreep said in an October interview. “He will brook no opposition to Planned Parenthood. He has threatened to have us criminally prosecuted and disbarred. He has no compunction to destroy any entity that stands in the way of Planned Parenthood.”
McElroy responded: “I have no desire to hurt Mr. Kreep, who I have known for 20 years and respect, as far as that respect goes. Frankly, I don’t think Mr. Ackerman is a very good lawyer, because he does things like this. He gets a whole lot of publicity and he rings the bell and then can’t un-ring it.”
One year ago, Enright ruled USJF filed a frivolous motion to dismiss a suit in which McElroy and Planned Parenthood sought an injunction against a pro-life protester for allegedly harassing employees and customers of a San Diego-area clinic.
The judge awarded McElroy more than $60,000, but the ruling still is under appeal. The sanctions originally were sought against Ackerman, but now USJF is the target.
McElroy admitted Enright later said he regretted his decision. But the Planned Parenthood lawyer argued the judge “had second thoughts for reasons no one knows – it may have been procedural as opposed to substantive reasons.”
McElroy has squared off with the USJF on many other cases and both sides agree, according to Ackerman, that they are in a cultural battle much bigger than the individual cases they represent. McElroy was co-counsel with the ACLU when it successfully argued last year that San Diego gave an unfair advantage in its sale of city-owned Mt. Soledad Park to a religious group that sought to maintain a cross on the land.
In the sanctions case one year ago, McElroy successfully argued that, based on photographic evidence, no reasonable attorney would file a motion to dismiss the case against the pro-life activist.
Ackerman insisted the photos are open to interpretation, however, and said the “chilling” decision not only threatened his former group financially but cast a pall on his ability to represent clients whose First Amendment rights are challenged.
He said, at the time, he thought Planned Parenthood’s move was a retaliatory response to the lawsuit against the San Diego-Riverside and Los Angeles affiliates. McElroy denied that, insisting he had been processing that case diligently since it was first filed two years ago.
Editor’s note: Contributions to the United States Justice Foundation can be made here.
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