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Holick v. Burkhart

United States District Court, D. Kansas

May 16, 2019

MARK HOLICK, Plaintiff,



         This matter comes before the court on Defendant's motion for summary judgment. (Doc. 249.) The motion is fully briefed and ripe for decision. (Docs. 249-1, 259, 260, 261, 262, 269.) For the reasons stated herein, the motion (Doc. 249) is GRANTED IN PART and DENIED IN PART.

         I. Background

         Defendant operates an abortion facility in Wichita. In 2012 and 2013, Plaintiff participated in several anti-abortion protests, including two near Defendant's residence. On March 17, 2013, Defendant filed a petition for a protection-from-stalking (“PFS”) order against Plaintiff in Sedgwick County District Court, pursuant to which a state judge issued an ex parte temporary PFS order the same day. Over two years later, Plaintiff moved for summary judgment in the stalking case, and Defendant voluntarily dismissed the action. Plaintiff subsequently filed this diversity action asserting tort claims under Kansas law for malicious prosecution and abuse of process.

         II. Uncontroverted facts

         The applicable rules require a summary judgment respondent to begin with “a concise statement of material facts” as to which that party contends a genuine issue exists. D. Kan. R. 56.1(b)(1). Plaintiff's statement is not concise and includes large blocks of deposition testimony without identification of any material fact.[1] Plaintiff has also responded to Defendant's statement by asserting a multitude of facts that are not supported by citations to the record, contrary to D. Kan. R. 56.1(b)(2). (Doc. 262 at 20-25.) These failures have hampered the court's efforts to compile a statement of material facts. Based on the materials cited, the court finds the following facts to be uncontroverted for purposes of summary judgment.

         In 2012, Defendant announced plans by her organization Trust Women to open South Wind Women's Center in Wichita, a clinic where abortions would be performed. Dr. George Tiller had operated a similar clinic at that location until 2009, when he was murdered by an anti-abortion activist. Dr. Tiller was fatally shot while serving as an usher at his church in Wichita. Defendant worked with Dr. Tiller from 2002 until 2009.

         Plaintiff, who has been doing pro-life ministry since 1978, founded a church named Spirit One Christian Center (the “Church”) in 1991. Plaintiff acted as senior pastor for the Church until it closed in 2010. After the church closed, Plaintiff had no church to pastor, and he attended Pastor Rob Rotola's Word of Life Church. In 2010, Plaintiff founded an organization called Spirit One Christian Ministries (“Spirit One”). The parties' statements do not discuss the nature of this organization. Before Dr. Tiller's murder in 2009, Plaintiff and members of the Church conducted many anti-abortion “outreaches” at Dr. Tiller's clinic. After Dr. Tiller's murder, the Church's marquee stated: “George Tiller - he died the same way he lived.” Defendant has been aware of Plaintiff since approximately 2001 when he protested during the “Summer of Mercy Renewal.” (Doc. 262 at 3.)

         In 2012, representatives of a “loosely organized coalition of Christian groups” met and discussed ways to oppose operation of Defendant's clinic. There was no single leader of the group. As many as thirty pastors attended meetings. Representatives of the group met with members of the Wichita Police Department (WPD) to discuss a planned pro-life outreach in the College Hill area where Defendant resided. The group wanted to have a police presence at the event, which was scheduled for November 17, 2012.

         John Pride, a representative of a group called Operation Save America, contacted and communicated with WPD Officer David Hinners about the event. Hinners in turn communicated with “both sides, ” meaning with Defendant and with Pride or other representatives of the protesters, in an effort to reduce tensions. Defendant was informed of the November 17 protest about a week ahead of time by Hinners. Prior to the November 17 protest, Hinners prepared and circulated an information flier in Defendant's neighborhood that said in part:

Spirit One Christian Ministries will be conducting an anti-abortion demonstration in the 100 block of South Belmont on Saturday November 17th from 11:30am to 1:00pm. Spirit One Christian Ministries has expressed that they may be making door to door contact of the homes in the neighborhood. The Wichita Police Department will have extra officers in the area. We will be working with all parties to ensure public safety and the protection of individual constitutional rights is a priority.

(Doc. 249-9.) Hinners testified he could not remember where he got the information that Spirit One was conducting the demonstration and said it could have come from Defendant. (Doc. 261-8 at 4.) He testified that Rob Rotola and Dave Daubenmire were the “key people” of the group that came in and talked to him or that ended up running the event. (Id. at 6.)

         On November 16, 2012, Defendant discussed the upcoming protest with her Trust Women board members. Defendant said the protest would be held by “Spirit One Church” outside her house. Members suggested having neighbors write letters to the editor and connecting “the current harassment with the hate and terrorism that led to Dr. Tiller's murder.” (Doc. 260-10 at 2-3.) Defendant also directed an assistant to draft “letters to the editor about the outrage of [protesters] being there” which should “call out Spirit One Christian Ministries, Mark Holick's hate group, and tie it back to what happened to Dr. Tiller.” (Doc. 262 at 2.) Defendant distributed a flyer in her neighborhood advising residents of the planned protest the following day and indicated it would be put on by “Spirit One Christian Ministries and their followers.” (Doc. 261-1.) Also, on November 16, in a Trust Women press release intended for release the next day, Defendant was quoted as saying: “Spirit One Christian Ministries and their followers have taken it upon themselves to try to use shame and harass[ment] of employees as a means to an end - so that Trust Women may not continue its work to open an ob/gyn facility. Spirit One's actions are tasteless and reprehensible…. This is the same virulent gathering that escalated the rhetoric regarding abortion, which ultimately led to the assassination of Dr. George R. Tiller.” (Doc. 259-4.)

         November 17, 2012 protest.

         On November 17, 2012, anti-abortion protesters gathered on the north side of Douglas Avenue near the intersection of Douglas and Belmont streets in Wichita, which was about one block (ten houses) away from Defendant's residence on South Belmont. Plaintiff was present. Some protesters, including Plaintiff, hand-delivered flyers to people in the area that were headlined: “ADOPT AN ABORTION-HOMICIDE PROMOTER.” The flyer contained Defendant's picture and her home address. It also contained a photograph of an unborn child purportedly undergoing a surgery in utero, in which the child's tiny hand protrudes from the womb and appears to grasp or lay across the finger of one of the medical personnel involved in the procedure. Among other things, the flyer asserted that Defendant “is responsible for the mass murder of thousands of innocent children”; that “[a]doption is the loving option, not only for babies, but also for adults who have lost their way”; “Please lovingly consider adopting this woman. She needs to know there is a better way”; urging people to “Adopt [Defendant] and pray for her repentance”; “Do a public outreach at her home [listing the address]”; “Write a letter and ask her to stop murdering innocent babies. Tell her about the forgiveness and love of Jesus Christ, if she is willing to turn from her sins”; “Alert the public to the massacre of innocent children by this woman”: “Julie Burkhart is our neighbor, your neighbor. As Christians we are called to love her. Our actions could bring her to Jesus and eternal life. Encourage her to repent of the mass murder of the Lord's preborn children”; and “please reminder her that, ‘God hates the hands that shed innocent blood.'” The bottom of the flyer indicated it was prepared by “Spirit One Christian Ministries” and listed Plaintiff's phone number. (Doc. 249-10.)[2]

         Just prior to the November 17 protest, John Pride and other protesters, including Plaintiff, met with a WPD officer in a nearby parking lot and received instructions on proper behavior, including not creating a disturbance, not impeding anyone from walking down the sidewalk, not trespassing, and staying out of people's yards. Pride testified no one violated those instructions. Plaintiff cites evidence that during the protest, David Gittrich of Kansans For Life stood on the public sidewalk near Defendant's house, and that Gittrich, Pride, and Rotola were there for the entire event. Gittrich stated in an affidavit that Rotola “did a little sidewalk preaching through a bullhorn on low volume for a few minutes.” Pride may also have used the bullhorn.

         Defendant and her family were not at her residence during the November 17 protest, except for a few minutes when she drove by and talked to some officers. (Doc. 259-7 at 10.) Based on what she was told later, she understood protesters formed into three groups, with one group at Douglas and Belmont (north of Defendant's house), one group at Belmont and English (south of Defendant's house), and one group on the public sidewalk directly in front of her house. (Doc. 259-7 at 18.) In her deposition, when Defendant was asked whether she knew which group Plaintiff was in, Defendant said, “Well, he was there protesting in my neighborhood, at my house. I don't know which group he dispersed into.” (Id.) When asked whether she was testifying that Plaintiff had been in front of her house on November 17, Defendant said “I believe he was in front of my house” based on “[t]he fact that Mark Holick was leading a group of Spirit One parishioners to come to my house to harass and intimidate me and to coerce my neighbors into … I guess forcing me to move out of my neighborhood, ” and “so it's based on that belief that he was wanting to come to my neighborhood to harass me.” (Id.)

         Defendant was aware that anti-abortion protesters had protested Dr. Tiller at his church before he was murdered there in 2009, and that they had distributed flyers concerning him.

         After the protest on November 17, Defendant talked to Officer Hinners and FBI Agent Fitzgerald. She complained about the protest as a whole but does not recall singling out any individual.

         February 15, 2013 protest.

         On February 15, 2013, protesters again picketed in Defendant's neighborhood. Plaintiff attended the protest. Defendant believed the signs were similar to the prior incident and she concluded “Spirit One … was back for a second protest.” During this incident, one protester held a sign with a picture of an aborted baby on it and the question “Where Is Your Church?” (Doc. 260-8.)

         Defendant was at her residence during the February 15 protest. Defendant was unsure which protesters were in front of her house during that incident. She testified she feared for her safety and was afraid to look out the window and did not accurately observe who was there. She testified she glanced out at some protesters in front of her house and that she saw Plaintiff with a bull horn. She also testified that a “Where's Your Church?” sign was left in her yard, against a tree, pointing at her house.

         Plaintiff has cited evidence that he did not protest directly in front of Defendant's house at any time, did not hold a sign up or point a sign in front of her house, never used a bullhorn there, and never used inflammatory language there. (Doc. 262 at 4.) During both protests, Plaintiff was holding a sign on the north side of Douglas Avenue.

         Defendant called 911 during the February 15 protest. Two WPD officers came to her house. The police report from the incident states that “Victim 1/Burkhart reports S1/[John] Pride and S/2 [Nicholas] Heald disturbing her peace by yelling outside her residence.” Defendant may have provided the names to the officers. She does not remember complaining to the officers about Holick and the police report contains no mention of him. Pride testified the police got his contact information and that no further action was taken. The police did not speak to Holick. David Gittrich of Kansans For Life testified the group on the sidewalk near Defendant's house on February 15 consisted of himself, Pride, and Heald.

         In a February 16 email to her lawyers and others, Defendant discussed the protest by “Holick and his group” and said she planned to go with her lawyer to get a PFS order. Defendant said that after talking with her husband and a reporter, “it seems that we overlooked one of the sayings on one of the signs” - the “Where's your Church” sign- and she asked, “Isn't this a direct threat?” (Doc. 249-13 at 2.) Defendant contends she understood the phrase to be a reference to the murder of Dr. Tiller at his church. Plaintiff, however, cites evidence that pro-life demonstrators have used similar signs since long before Dr. Tiller's murder, and that the signs were intended to encourage Christians and pastors to get more involved in the abortion issue. (See Doc. 262 at 14-15.)

         March 7, 2013 PFS Petition and proceedings.

         Kansas has adopted the “protection from stalking, sexual assault or human trafficking act” (PFSA). K.S.A. § 60-31a01. It provides in part that a person may seek relief from stalking by filing a verified petition with a judge of the district court, on a form provided by the clerk. K.S.A. § 60-31a04. Stalking means an intentional harassment of another person that places them in reasonable fear for their safety. Harassment means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. A course of conduct requires two or more separate acts evidencing a continuity of purpose which would cause a reasonable person to suffer substantial emotional distress; it does not include constitutionally protected activity. K.S.A. § 60-31a02.

         Within 21 days of filing a PFS petition, “a hearing shall be held at which the plaintiff must prove the allegation of stalking, ” and “the defendant shall have the opportunity to present evidence.” K.S.A. § 60-31a05(a). Prior to such a hearing, temporary orders necessary to protect the victim may be granted ex parte on presentation of a verified petition supporting a prima facie case of stalking. K.S.A. § 60-31a05(b). If a hearing under subsection (a) is continued, the court may make or extend such temporary orders under subsection (b) as it deems necessary. K.S.A. § 60-31a05(c). The court may issue a PFS order granting various forms of relief set out in K.S.A. § 60-31a06. A PFS order remains in effect until dismissed or modified by the court “and shall be for a fixed period of time not to exceed one year, ” except that upon motion of the complainant the court may extend the order for an additional year, and under some circumstances the order may be continued for greater periods. K.S.A. § 60-31a06 (b) & (c).[3]

         On March 7, 2013, Defendant filed a PFS petition against Plaintiff in Sedgwick County District Court. The petition was handwritten by Defendant on a form provided by the court. Defendant listed Plaintiff's work address as the Word of Life Church on Meridian Street. Defendant obtained that information from an internet search. She additionally listed “Spirit One” at an “unknown address” based upon the flyer indicating Plaintiff was with Spirit One Christian Ministries and upon Defendant's prior knowledge that Plaintiff was a pastor of Spirit One Church. (Doc. 249-7 at 6.) Defendant alleged three incidents in the petition:

Incident # 1: Sat. Nov. 17, 2012, 11:30 a.m. - 1:30 p.m. Picketing @ my house and my neighborhood. Handed out a wanted-style flyer about me, Julie Burkhart. Had posters w/ inflammatory language.
Incident #2: Fri. Feb. 15, 2013, 7:30 a.m. - 9:30 a.m. Pointed a sign towards my house that said “WHERE'S YOUR CHURCH.” My former boss was murdered in his church. Used a bull horn or way to magnify volume.
Additional Incident(s), if any: January 2013 - Mark Hollick [sic] was at my place of business, standing in the middle of the driveway, with John Pride. He also walked the perimeter of the building, scoping it out.

(Doc. 249-11). In a space to explain why she needed a PFS order, Defendant stated it was because “he is engaging in behavior meant to scare and intimidate me. He also uses violent language, which I take very seriously.” (Id.) ...

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