IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,383
ALPHA MEDICAL CLINIC AND
BETA MEDICAL CLINIC,
Petitioners,
v.
HONORABLE RICHARD ANDERSON, JUDGE OF THE THIRD JUDICIAL DISTRICT, SHAWNEE COUNTY, KANSAS, AND PHILL KLINE,
ATTORNEY GENERAL FOR THE STATE OF KANSAS,
Respondents.
SYLLABUS BY THE COURT
1. K.S.A. 22-3101 et seq. governs the conduct of inquisitions in criminal cases in Kansas. K.S.A. 2004 Supp. 22-3101(1) authorizes the attorney general, if he or she has knowledge of any alleged violation of Kansas law, to apply to a district judge to conduct an inquisition. Once the attorney general's verified application setting forth the alleged violation of the law is filed, the judge "shall issue a subpoena for the witnesses named in such praecipe commanding them to appear and testify concerning the matters under investigation." K.S.A. 2004 Supp. 22-3101(1).
2. Although K.S.A. 2004 Supp. 22-3101 does not mention subpoenas duces tecum, such subpoenas are authorized in both judicial and prosecutorial inquisitions.
3. The standard governing a district court's review of the attorney general's allegations before issuing inquisition subpoenas is reasonable suspicion rather than probable cause.
4. K.S.A. 65-6703, the criminal abortion statute, provides that a pregnant woman who desires an abortion must have her treating physician determine the gestational age of the fetus. If that age is less than 22 weeks, then the woman may obtain an abortion as long as appropriate documentation requirements are met. If the gestational age is 22 weeks or more, the treating physician must then make a determination of fetus viability, i.e., the ability of the fetus to survive outside the womb. If the fetus is not viable, the woman may obtain an abortion as long as appropriate documentation and reporting requirements are met. If the fetus is viable, then the treating physician and the physician who will perform the abortion must agree that the abortion is necessary to preserve the life of the pregnant woman or because continuation of the pregnancy will cause substantial and irreversible impairment of a major bodily function of the woman, before an abortion can be performed and documented.
5. K.S.A. 2004 Supp. 38-1522 requires health care providers, inter alia, to file a report with Kansas Department of Social and Rehabilitation Services when they have reason to suspect that a child has been injured as a result of physical, mental, or emotional abuse or neglect or sexual abuse. Sexual abuse is defined to include sexual intercourse with a child under 16 years of age.
6. The Kansas Constitution provides this court with original jurisdiction for proceedings in mandamus. Kan. Const. Art. 3, § 3. In addition, K.S.A. 60-801 provides for mandamus.
7. Mandamus is an appropriate avenue to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of public business. Also, although a district judge's discretion cannot be controlled by mandamus, if the judge's order threatens to deny a litigant a right or privilege that exists as a matter of law and there would be no remedy by appeal, mandamus may be invoked. The Supreme Court also may exercise its original jurisdiction and settle a question through mandamus if the petition presents an issue of great public importance and concern.
8. In a judicial inquisition under K.S.A. 2004 Supp. 22-3101(1), the court has a duty to prevent abuse of the judicial process by prosecutors.
9. The petitioner has the burden of demonstrating a right to relief in mandamus.
10. On the facts of this case, three federal constitutional rights to privacy are potentially implicated by the attorney general's inquisition and subpoenas duces tecum seeking records of abortions performed in Kansas: the right to maintain the privacy of certain information; the right to obtain confidential health care; and the fundamental right of a pregnant woman to obtain a lawful abortion without the government's imposition of an undue burden on that right.
11. Abortion providers can assert their patients' constitutional rights to privacy.
12. Under the facts of this case, the court must balance the State's compelling interest in pursuing criminal investigations and the privacy rights of patients who have received abortions, considering the type of information requested, the potential harm in disclosure, the adequacy of safeguards to prevent unauthorized disclosure, the need for access, and statutory mandates or public policy considerations.
13. A judge called upon by the attorney general to issue inquisition subpoenas under K.S.A. 2004 Supp. 22-3101(1) must consider any legal interpretations on which the attorney general relies to support the need for the subpoenas.
14. On the facts of this case, at this time, we do not hold the attorney general in contempt.
Original action in mandamus. Opinion filed February 3, 2006. Writ of mandamus granted.
Lee Thompson, of Thompson Law Firm, LLC, of Wichita, argued the cause, and Daniel E. Monnat, of Monnat & Spurrier, Chartered, of Wichita, Pedro L. Irigonegaray, Robert V. Eye, and Elizabeth R. Herbert, of Irigonegaray & Associates, of Topeka, Douglas N. Ghertner and Robert A. Stopperan, of Slagle, Bernard & Gorman, P.C., of Kansas City, Missouri, Roger Evans, of New York, New York, and Helene T. Krasnoff, of Washington, D.C., were with him on the briefs for petitioners.
Eric K. Rucker, chief deputy attorney general, and Robert T. Stephan, special assistant attorney general, argued the cause, and Jared S. Maag, deputy attorney general, Stephen D. Maxwell, senior assistant attorney general, and Kristafer Ailslieger, assistant attorney general, were with him on the brief for respondent Phill Kline.
Thomas J. Drees, Ellis County Attorney, was on the brief for amicus curiae Kansas County and District Attorneys' Association.
The opinion of the court was delivered by
BEIER, J.: This is an original action in mandamus brought by petitioners Alpha Medical Clinic and Beta Medical Clinic arising out of an inquisition in which respondent Attorney General Phill Kline subpoenaed the entire, unredacted patient files of 90 women and girls who obtained abortions at petitioners' clinics in 2003. At the time the petition in this action was filed, respondent Shawnee County District Judge Richard Anderson had ordered the files produced to the court for an initial in camera review by an attorney appointed by the judge and a physician or physicians appointed by the attorney general. We stayed that order pending our consideration of the matter.
The parties' pleadings and briefs raise several issues: (1) Is mandamus an appropriate avenue for relief? (2) To what degree, if any, must the inquisition subpoenas be limited because of the patients' constitutional right to privacy? (3) To what degree, if any, must the inquisition subpoenas be limited because of the Kansas statutory physician-patient privilege? (4) To what extent, if any, are the petitioners entitled to be further informed regarding the purpose and scope of the inquisition? (5) Should the nondisclosure provisions of the subpoenas be enforced? and (6) Should the attorney general be held in contempt for speaking publicly about matters held under seal in this court?
Factual and Procedural Background
The two subject subpoenas were issued September 21, 2004. Each contained a return date of October 5, 2004, and provided that objections, if any, would be due by September 24, 2004. The subpoenas stated the district court had found there was probable cause "to believe that evidence of a crime or crimes may be located" in the patient files, identified by state record number, provider number, and patient identification number. Further, each subpoena provided: "The existence of this subpoena and any records produced pursuant to such are to remain confidential and not to be disclosed to any other person or entity."
Petitioners filed a motion to quash the subpoenas and sought additional information about the violations of the law under investigation so they could analyze and argue whether the subpoenas were reasonable or an abuse of process. On October 5, 2004, Judge Anderson heard the parties' arguments on the motion to quash.
At that hearing, Stephen Maxwell of the attorney general's office characterized the inquisition as "massive in nature." Potential violations of two specific statutes were mentioned: K.S.A. 65-6703, which deals with abortions performed at or after 22 weeks' gestational age, and K.S.A. 2004 Supp. 38-1522, which governs mandatory reporting of suspected child abuse.
Petitioners, for their part, argued that the attorney general is a vocal opponent of abortion rights and interprets the K.S.A. 65-6703 exception to prohibition of abortions at 22 weeks' gestational age or later to be limited to consideration of the physical health of the pregnant woman, rather than including consideration of her mental health. Petitioners asserted that this interpretation conflicts with United States Supreme Court precedent and could not therefore provide a basis for the court's probable cause determination. Petitioners conceded, however, that if the files could contain evidence of violations of Kansas law not premised on a new or unannounced legal interpretation, and the evidence could not otherwise be obtained, the State had demonstrated a compelling interest justifying an order to produce at least parts of the files.
In an apparent response to petitioners' argument regarding the unconstitutionality of the attorney general's interpretation of the statutory exception, Maxwell agreed that no crime had been committed (or, presumably, would need to be prosecuted) if the investigation ultimately turned up no more than a reasonable medical debate over the condition of each of the patients and the threats posed to her by continuing her pregnancy to term.
At the conclusion of the hearing, Judge Anderson orally denied the motion to quash and ordered production of the subpoenaed files by October 15, 2004.
Petitioners filed a motion for reconsideration on October 8, 2004, and informed Judge Anderson of their intent to file a petition for writ of mandamus in the event their motion for reconsideration was denied. Five days later, Judge Anderson ordered a stay of the production of the files until his further order.
On October 21, 2004, the judge issued a written Memorandum and Order, requiring petitioners to produce the 90 unredacted patient files by October 28, 2004. The order stated that K.S.A. 65-6703 prohibited an abortion when the fetus is viable unless the referring physician and performing physician "determine that the abortion is necessary to preserve the life of the pregnant woman and that a continuation of the pregnancy would cause a substantial and irreversible impairment of a major bodily function of the pregnant woman." (Emphasis added.) Judge Anderson also noted that the statute required the gestational age of the fetus to be determined, the basis for that determination to be documented, and both ultimately to be reported to the Kansas Department of Health and Environment. He continued:
"The Court has considered the medical facilities' assertions of constitutional flaws in the application of K.S.A. 65-6703. The Court does not find the presumed flaws preclude production of the records. The Attorney General has described sufficient basis for conducting the inquisition. Even assuming the constitutional flaws in the presumed application of K.S.A. 65-6703 as suggested by the medical facilities, the Court finds the Attorney General is authorized to conduct the inquisition."
Judge Anderson's order also discussed K.S.A. 2004 Supp. 38-1522, the statute governing mandatory reporting of suspected child abuse, specifically distinguishing the case before him from an ongoing federal court action. See Aid for Women v. Foulston, ___ F.3d ___, 2006 WL 218185, 3 (10th Cir. January 27, 2006). Judge Anderson noted that the federal case involved investigations of "mandatory reporting of sexual activity between similar age minors when injury is not reasonably suspected," which this case does not. Kline has issued a formal written opinion stating that all sexual intercourse engaged in by anyone younger than 16 is, by definition, rape and inherently injurious. Att'y Gen. Op. No. 2003-17. Kline's opinion deviates from the position of his predecessor once removed, now his lawyer in the contempt proceeding, Robert T. Stephan. See Att'y Gen. Op. No. 1992-48.
Judge Anderson's order also provided for certain precautions to guard against unnecessary disclosure of sensitive, confidential, or irrelevant information in the patient files: (1) The files were to be deposited in the district court and would not be disclosed to anyone, including the attorney general or his agents, until further court order; (2) the court would select special counsel to conduct an initial in camera review of the files and to assist in identifying sensitive, confidential, or irrelevant information; and (3) the court would require the attorney general to "nominate one or more licensed physicians to examine medical records" and to explain to the court the relevance of any document designated for photocopying. Judge Anderson also stated that the redaction of patient-identifying information would be considered before any copies of the files would be released. Finally, petitioners were to be given an opportunity to make suggestions regarding the management of the records to cause no broader intrusion into the patients' privacy than necessary.
In response, petitioners filed a motion for a protective order, asking Judge Anderson to permit them to redact identifying information from the files before production. Judge Anderson had not ruled on this motion when the petition for mandamus was filed with this court on October 26, 2004, 2 days before production was required under the district court order.
Certain additional facts concerning the inquisition have been revealed in the course of the proceedings in the district court and before us. An affidavit generated by a lawyer in the attorney general's office confirms that the inquisition had been ongoing for approximately 2 years as of May 2005, and focuses on at least allegedly unjustified "late-term" abortions and possible unreported child sexual abuse. Maxwell also asserted before Judge Anderson that crimes other than violations of the criminal abortion and mandatory child abuse reporting statutes might be uncovered. Moreover, Deputy Attorney General Eric Rucker stated at oral argument before this court that the inquisition concerned emotional abuse, as well as sexual abuse, of minors.
Approximately three-fourths of the files sought deal with adult patients; the remainder detail services provided to minors. Approximately two-thirds of the files are sought from Alpha Medical Clinic, the remaining one-third from Beta Medical Clinic, which does not perform "late-term" abortions.
Rucker also stated before this court that petitioners and child molesters are the targets of this criminal inquisition and that there is probable cause to believe that each of the 90 files would provide evidence of at least one felony and one misdemeanor. Indeed, he said that each of the adult patients' files was expected to contain evidence of more than one felony. Rucker also informed this court that none of the patients whose files are sought is a target of the inquisition. See K.S.A. 65-6703(c) (patient cannot be prosecuted under criminal abortion statute). Rucker was -- and the record is -- silent on whether individual physicians also are targets of the inquisition.
The Parties' Positions
In their brief, petitioners assert that we must compel Judge Anderson and Kline to cease further enforcement of the subpoenas. Should we regard this outcome as too extreme, they propose several alternatives: (1) An order that respondents desist from seeking further enforcement of the subpoenas without first demonstrating in a hearing that a compelling need for the patient files exists and that the State seeks no more protected information than that amount absolutely necessary to meet the compelling need; (2) an order permitting petitioners to redact all patient-identifying and irrelevant information from the files before production; and (3) an order requiring Judge Anderson to enter a protective order to protect the patients' rights before the files are produced.
The attorney general argues: (1) Mandamus is not an appropriate remedy because respondents have not failed to perform a clear legal duty owed to petitioners, because mandamus cannot be used to thwart a criminal investigation, and because the petition improperly seeks injunctive relief based on issues not ripe for review; (2) even if mandamus is hypothetically appropriate, there is no constitutional or statutory basis for the extraordinary judicial intervention urged by the petitioners, and such intervention would do violence to the prosecutorial function and the separation of powers; (3) the enforcement of the subpoenas will not violate any patient's constitutional right to privacy, because investigation and prosecution of crimes are compelling state interests and the district court's order is narrowly tailored to protect the rights of the patients while meeting the needs of the inquisition; and (4) the physician-patient privilege is not applicable in this matter.
Petitioners' and the attorney general's positions on one other aspect of the case also are worth noting at this point. Since the beginning of this mandamus proceeding, petitioners also sought to stay the subpoenas' nondisclosure provision. Petitioners' supplemental motion on this subject was granted by this court on March 9, 2005. Earlier -- on October 28, 2004 -- we had entered an order requiring all filings in the mandamus action to be kept under seal.(1) We eventually made an exception for the formal briefs to be filed by the parties. Ultimately, these orders and their potential intersection gave rise to petitioners' allegation that the attorney general is in contempt of this court because of certain attachments to his brief and his public comments thereon.
In this mandamus action, Judge Anderson does not argue the points raised by the other parties. Rather, in his Answer and Statement Regarding Joint Petition for Writ of Mandamus and Order Staying Production of Medical Records, he seeks guidance from this court on the following four questions:
"1. After a motion to quash an inquisition subpoena has been filed or otherwise, does a district court have the authority or any obligation under the inquisition statute or other applicable law to grant a person or entity challenging the subpoena any other procedural rights, such as a hearing, in addition to filing a motion to quash and, if so, what are these rights?
"2. After a motion to quash an inquisition subpoena has been filed or otherwise, does a district court have the authority or any obligation under the inquisition statute or other applicable law to disclose to the subpoena recipient all or any portion of the information constituting the factual basis for the reasonable suspicion upon which the subpoena was issued, and, if so, under what circumstances and to what extent?
"3. To what extent, if any, does the recipient of an inquisition subpoena have a right to confront or challenge the evidence of reasonable suspicion upon which the subpoena was issued and, if so, at what stage of the inquisition?
"4. Upon motion to quash an inquisition subpoena or otherwise, is a district court authorized to conduct or supervise an in camera review of subpoenaed materials or utilize other measures it deems appropriate to protect the competing interests of the Attorney General under the inquisition statute and those of a subpoena recipient or others?"
Finally, this court also received an amicus curiae brief from the Kansas County and District Attorneys' Association. The Association argues that the judicial branch has only a limited role in the pre-charge phase of criminal investigations and should involve itself in review of the prosecutor's actions only "if extraordinary circumstances warrant it and no other relief would satisfy the cause of justice."
Filings Since Oral Argument
After oral argument on September 8, 2005, the attorney general's office filed two Motions to Clarify statements made by Rucker earlier that day.
One of the motions states that the attorney general "has no qualms with" the district court, rather than the attorney general, selecting the physician who would do the initial in camera review of the patient files. The attorney general "simply opposes said physician(s) being appointed by petitioners who are the targets of the criminal investigation." This motion also states that the attorney general does not oppose redaction of all patient-identifying information before the district court's special counsel and physician perform the in camera review, although it asserts that Judge Anderson will need to be provided with the redacted information "in order to cross-reference the files with records and evidence from other sources."
The other motion, despite its caption, changes rather than clarifies certain statements made by Rucker in response to questions from members of this court during oral argument. It states in pertinent part:
"1. As part of this criminal investigation and/or inquisition, respondent has sought records and information from other mandatory reporters besides the petitioners in the present mandamus action. This effort has included subpoenas for records relating to live births involving mothers under the legal age of sexual consent.
"2. At oral argument, counsel was unable to directly and adequately respond to the questions from the bench specifically relating to this topic because of the secret nature of the criminal investigation and inquisition and the existence of a do not disclose order relating to the subpoenas of live birth records."
It is evident that, at least in the attorney general's judgment, whatever order allegedly compelled Rucker to be less than forthright in his answers to this court's questions on September 8, 2005, had either been lifted or dissipated or overcome by a competing priority by mid-October 2005, when Kline called a press conference and announced that he had obtained the birth records of 62 babies born to girls younger than 16. The mechanism by which Kline obtained these records remains somewhat unclear, as does the reason for and timing of the press conference.
We also note that petitioners, since oral argument, filed a Motion for Order Directing the District Court to Forward the Entire Inquisition Record to This Court, and that the attorney general filed a response to this motion. We deny this motion at this time, because we are able to address the issues raised in this mandamus proceeding on the record before us.
The Criminal Inquisition Statutory Scheme
K.S.A. 2004 Supp. 22-3101 et seq. governs the conduct of inquisitions in criminal cases in Kansas.
K.S.A. 2004 Supp. 22-3101(1) authorizes the attorney general, if he or she has knowledge of any alleged violation of Kansas law, to apply to a district judge to conduct an inquisition. Once the attorney general's verified application setting forth the alleged violation of the law is filed, the judge "shall issue a subpoena for the witnesses named in such praecipe commanding them to appear and testify concerning the matters under investigation." K.S.A. 2004 Supp. 22-3101(1).
K.S.A. 2004 Supp. 22-3101 does not mention subpoenas duces tecum such as those at issue here, but they are used regularly in criminal cases across the state. Our Court of Appeals has previously held that such subpoenas may issue in a prosecutor's inquisition focused on violations of narcotics laws under K.S.A. 2004 Supp. 22-3101(2). Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 583 P.2d 1042, rev. denied 225 Kan. 845 (1978). In addition, this court has implicitly upheld the Southwestern Bell decision on at least three separate occasions. See State ex rel. Brant v. Bank of America, 272 Kan. 182, 188, 31 P.3d 952 (2001) (State Securities Commissioner subpoenas of bank documents in connection with administrative investigation); State v. Schultz, 252 Kan. 819, 822-23, 850 P.2d 818 (1993) (inquisition subpoenas of bank, phone records); State ex rel. Cranford v. Bishop, 230 Kan. 799, 800-01, 640 P.2d 1271 (1982) (district court has the inherent power to refuse to issue subpoenas to avoid abuse of judicial process); see also State, ex rel. v. Rohleder, 208 Kan. 193, 490 P.2d 374 (1971) (pre-Southwestern Bell decision; inquisition subpoena sought testimony and production of books, records, and invoices). We agree that both the K.S.A. 2004 Supp. 22-3101(1) judicial inquisition of this case and the K.S.A. 2004 Supp. 22-3101(2) prosecutorial inquisition at issue in the Court of Appeals' Southwestern Bell case permit subpoenas calling for the production of documents as well as subpoenas calling for witness testimony.
The statute also provides that "[a]ny person who disobeys a subpoena issued for such appearance or refuses to be sworn as a witness or answer any proper question propounded during the inquisition, may be adjudged in contempt of court." K.S.A. 2004 Supp. 22-3101(3). Similarly, this provision would apply if a person or entity refuses without justification to respond to an inquisition subpoena duces tecum.
The statute is silent on the standard that governs a district court's pre-subpoena review of the attorney general's allegations, and there appears to be some confusion on this point in the record before us: The two subpoenas at issue recite that Judge Anderson has found "probable cause exists to believe that evidence of a crime or crimes may be located in the medical records identified." (Emphasis added.) However, two of the questions Judge Anderson directed to our attention in this proceeding specifically assume that a district judge's only duty before issuing inquisition subpoenas duces tecum is to find reasonable suspicion that evidence of the alleged violations will be found in the documents sought. Although the parties have not focused on this question, we believe it necessary to address it so that we are responsive to Judge Anderson's questions.
The purpose of an inquisition is to gather information to determine whether probable cause exists to support a criminal prosecution. State v. Cathey, 241 Kan. 715, 720, 741 P.2d 738 (1987); In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 473, 932 P.2d 1023 (1997). It does not make sense to require a prosecutor seeking an inquisition subpoena to meet a probable cause standard in order to gather information he or she needs to determine whether probable cause for prosecution exists. We therefore hold that the standard to be employed by a district judge evaluating whether to issue subpoenas for witness testimony or documents under K.S.A. 2004 Supp. 22-3101(1) is reasonable suspicion rather than probable cause.
The Known Criminal Statutes at Issue
As previously mentioned, the attorney general has expressly alleged that petitioners violated two statutes: K.S.A. 65-6703, the criminal abortion statute, and K.S.A. 2004 Supp. 38-1522, which requires reporting of sexual abuse of children.
The structure of K.S.A. 65-6703 is as follows:
A pregnant woman who desires an abortion must have her treating physician determine the gestational age of the fetus. If that age is less than 22 weeks, then the woman may obtain an abortion as long as appropriate documentation requirements are met. K.S.A. 65-6703(b)(1).
If the gestational age is 22 weeks or more, the treating physician must then make a determination of fetus viability, i.e., the ability of the fetus to survive outside the womb. K.S.A. 65-6703(b)(2). If the fetus is not viable, the woman may obtain an abortion as long as appropriate documentation and reporting requirements are met. K.S.A. 65-6703(b)(3).
If the fetus is viable, then the treating physician and the physician who will perform the abortion must agree that the abortion is necessary to preserve the life of the pregnant woman or because "continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman," before an abortion can be performed and documented. K.S.A. 65-6703(a); (b)(4).
Violation of this statute is a Class A nonperson misdemeanor for the first violation and a severity level 10 nonperson felony for any subsequent violation. K.S.A. 65-6703(g).
The second statute known to be at issue, K.S.A. 2004 Supp. 38-1522, requires health care providers, inter alia, to file a report with the Kansas Department of Social and Rehabilitation Services when they have "reason to suspect that a child has been injured as a result of physical, mental or emotional abuse or neglect or sexual abuse." K.S.A. 2004 Supp. 38-1522(a). Sexual abuse, as defined under K.S.A. 2004 Supp. 38-1502(c), includes sexual intercourse with a child under 16 years of age. See K.S.A. 2004 Supp. 21-3502(a)(2); K.S.A. 21-3504(1). K.S.A. 2004 Supp. 38-1522(f) provides that willful and knowing failure to report injury to a child arising from abuse is a class B misdemeanor.
There is no dispute between the parties that petitioners have a legal duty to report suspected child sexual or other abuse, including sexual intercourse with a child under 16, under these provisions.
Propriety of Mandamus
The Kansas Constitution provides this court with original jurisdiction for proceedings in mandamus. Kan. Const. Art. 3, § 3. In addition, K.S.A. 60-801 provides:
"Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law."
This court also has recognized mandamus as an appropriate avenue to obtain an authoritative interpretation of