IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 98,747
COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD OF KANSAS
AND MID-MISSOURI, INC.,
Petitioner,
v.
PHILL KLINE, JOHNSON COUNTY DISTRICT ATTORNEY,
Respondent,
and
STEPHEN N. SIX, KANSAS ATTORNEY GENERAL,
Intervenor.
SYLLABUS BY THE COURT
1. Kansas Supreme Court Rule 9.01(a) (2007 Kan. Ct. R. Annot. 70), requires a petition for mandamus to state why original jurisdiction has been invoked only if relief is available in the district court. Even if district court relief is available, the Supreme Court has discretion to exercise its original jurisdiction.
2. An abortion provider has standing in mandamus to attempt to neutralize threatened violations of its patients' constitutional privacy rights by a prosecutor's alleged unlawful performance of a public duty or unlawful exercise of public office.
3. It is the function of the Supreme Court to determine real rather than speculative or abstract controversies. This action's challenge to a prosecutor's handling of abortion patient records qualifies as a real controversy, compelling this court to decide whether the prosecutor's behavior constituted unlawful performance of a public duty or unlawful exercise of public office and whether he engaged in contemptuous or otherwise sanctionable conduct.
4. A county or district attorney is the representative of the State in criminal prosecutions; and he or she has broad discretion in controlling those prosecutions. The scope of this discretion extends to the power to investigate and to determine who shall be prosecuted and what crimes shall be charged. It includes the power to dismiss charges; a court cannot refuse to allow a dismissal or restrain a prosecution. Nevertheless, a prosecutor's discretion is not limitless; and the doctrine of separation of powers does not prevent court intervention in appropriate circumstances. Courts must react when a prosecutor abuses the judicial process. The Supreme Court may order relief when a prosecutor's behavior qualifies as an unlawful performance of public duties or an unlawful exercise of his or her office.
5. Unless a respondent's legal duty is clear, a writ in mandamus should not issue.
6. Generally, an Attorney General has lawful authority to give information arising out of an investigation to others in a position to prosecute a lawbreaker; a county or district attorney has authority to receive and act upon such information; and a prosecutor need not obtain permission from a member of the judiciary before such an information exchange.
7. On the record of this case, the doctrine of incompatibility of offices does not apply. One individual who served first as Attorney General and then as a district attorney was empowered to authorize movement of certain materials gathered in a criminal inquisition from his first prosecutorial office to his second.
8. On the record of this case, no binding standards for exactly how to effect an exchange of investigation information between prosecutors exist. Use of private citizens to transport or store such information is not unlawful.
9. Mandamus is appropriate to compel a former public officer to return property belonging to the office, but not if the former public officer occupies a new public office also legally entitled to possession of the property.
10. On the facts of this case, respondent and his subordinates used the resources of respondent's statewide office to pursue an abortion-related inquisition. Their removal of certain materials gathered and generated in that inquisition from that statewide office hampered respondent's successor's ability to fulfill his duties. Thus respondent and his subordinates must supply the materials gathered and generated in the inquisition to respondent's later successor in the statewide office.
11. Civil contempt is the failure to do something ordered by the court for the benefit or advantage of another party to the proceeding. A proceeding in civil contempt is remedial in nature, designed to advance the private right of a litigant won by court order. Any penalty inflicted for civil contempt is intended to be coercive, and relief can be achieved only by compliance with the order. On the facts of this case, this court does not deem it advisable to institute a proceeding against respondent for indirect civil contempt under K.S.A. 20-1204a at this time.
12. On the facts of this case, neither petitioner nor intervenor is entitled to an award of attorney fees.
13. This court has inherent power to sanction behavior not denominated contempt and absent particular statutory authorization, as reasonably necessary for the administration of justice, provided these powers in no way contravene or are inconsistent with substantive statutory law.
14. On the facts of this case, respondent's obstructive behavior merits the imposition of sanctions by this court, as set out in this opinion.
15. Petitioner's motion to strike a portion of respondent's brief and its attachments is considered, and it is held that the attachments are stricken; the court has disregarded the disputed portion of the brief.
Original proceeding in mandamus. Opinion filed December 5, 2008. Petition for writ of mandamus granted in part and denied in part.
Robert V. Eye, of Irigonegaray & Associates, of Topeka, argued the cause, and Pedro L. Irigonegaray and Elizabeth R. Herbert, of the same firm, and Douglas N. Ghertner and Robert A. Stopperan, of Slagle, Bernard & Gorman, of Kansas City, Missouri, and Roger K. Evans, of Planned Parenthood Federation of America, of New York, New York, and Helene T. Krasnoff, of Planned Parenthood Federation of America, Washington, D.C., were with him on the briefs for petitioner.
Caleb Stegall, of The Stegall Law Firm, of Perry, and Phill Kline, respondent, argued the cause, and Edward D. Greim and Todd P. Graves, of Graves Bartle & Marcus, LLC, Kansas City, Missouri, and Carly F. Gammill, of American Center for Law & Justice, Washington, D.C., and Edward L. White, III, of American Center for Law & Justice, Ann Arbor, Michigan, were with him on the briefs for respondent.
Michael C. Leitch, deputy attorney general, argued the cause and was on the brief for intervenor Attorney General Stephen N. Six.
The opinion of the court was delivered by
BEIER, J.: This is an original action in mandamus filed by petitioner Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. (CHPP), to challenge respondent Phill Kline's handling of patient records obtained from CHPP pursuant to an inquisition subpoena issued when Kline was Attorney General. We decide whether CHPP has met its burden to obtain relief in mandamus and whether Kline's behavior merits sanction as civil contempt or otherwise.
Factual and Procedural Background
On February 3, 2006, this court issued its opinion in Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006), which arose out of Kline's issuance of inquisition subpoenas duces tecum under K.S.A. 22-3101(1). Our decision identified three constitutional privacy interests implicated by subpoenas for patient records directed to Women's Health Care Services of Wichita, P.A. (WHCS), and CHPP, identified in the opinion as Alpha Medical Clinic and Beta Medical Clinic. Both clinics perform abortions. We balanced the patients' individual privacy interests against the societal necessity and compelling State interest in pursuing criminal investigations, outlining procedures to be followed for redaction of the records before the district court allowed them to be turned over to the Attorney General. See Alpha, 280 Kan. at 924-25. We did not rule upon exactly which data was to be redacted or how the records were to be handled once they were placed in Kline's hands. See Alpha, 280 Kan. at 924-25. During oral argument in Alpha, Chief Deputy Attorney General Eric Rucker, who argued the case on behalf of then Attorney General Kline, asserted that Kline was not seeking patient names.
In Alpha, the clinics urged us to hold Kline in contempt of court, in part because he had attached to his brief portions of a district court transcript and order, had discussed the inquisition at a press conference, and had permitted distribution of the transcript after the conference concluded, all allegedly in violation of court seal orders.
In response to the clinics' contempt argument, we first observed that those allegations over which this court had jurisdiction concerned indirect criminal contempt. Indirect contempt deals with conduct occurring outside the presence of a judge. Alpha, 280 Kan. at 926. Proceedings in criminal contempt attempt to "'"'preserve the power and vindicate the dignity of the courts and to punish for disobedience'"' of court orders; criminal contempt tends to obstruct the administration of justice." Alpha, 280 Kan. at 927 (quoting State v. Davis, 266 Kan. 638, 645, 972 P.2d 1099 [1999]. We continued:
"In his initial response to this court's Order to Show Cause, the attorney general contended that the documents attached to his brief were 'but a very small fraction of the entire record before the lower court in the inquisition; we attached only what we believed necessary to support our arguments in this segment of the proceedings.' As for the news conference, Kline asserted that he 'stressed the privacy protections put in place by the lower court and the law to prevent public disclosure of the medical records sought. . . . I did not refer to the transcript of the lower court's hearing, nor did I provide it at the news conference. Later that day, my communications director, after our brief had been filed, provided the transcript electronically to those who requested a copy.' He argued that 'it was seemingly inconsistent to keep these pleadings under seal while at the same time suggesting that oral argument was likely.' Kline also argued that the press conference was 'necessitated by the false impression left by the public filing of Petitioners' brief and [Petitioners'] representation of the record.'
"Kline's initial responses were troubling. He admitted that he attached sealed court records to a brief he knew would be unsealed; that he did so knowingly because, in his sole estimation, he believed it to be necessary to further his arguments; that he held a press conference on this criminal matter merely because he determined that petitioners had painted his previous actions in an unflattering light; and that he later permitted his staff to provide electronic copies of the sealed transcript to anyone who requested them. In essence, Kline has told this court that he did what he did simply because he believed that he knew best how he should behave, regardless of what this court had ordered, and that his priorities should trump whatever priorities this court had set. Furthermore, although there is conflict between the parties on exactly what was said in the press conference, i.e., whether the actual content of the sealed documents was discussed, Kline's stated reason for holding the conference–to combat what he saw as unflattering earlier press coverage–does not appear to be among the permissible reasons for an attorney in his position to engage in extrajudicial statements under Kansas Rule of Professional Conduct 3.6 (2005 Kan. Ct. R. Annot. 473) [now KRPC 3.8 (2007 Kan. Ct. R. Annot. 520)]. This too is troubling.
"At oral argument before this court, Kline's [personal] lawyer, a former four-term attorney general, wisely altered the tone of Kline's response. He characterized whatever mistakes Kline may have made as honest ones and said his client was acting in good faith. He also, as Kline eventually had done for himself in his written response, made a classic 'no harm, no foul' argument: Any disclosure of sealed material did nothing to impair the orderly nature of this proceeding or the soundness of its eventual result; the attorney general and his staff did not release information harmful to personal privacy, prejudicial to the administration of justice, or detrimental to this court's performance of its duties.
"We conclude that, despite the attorney general's initial defiant tone, he should not be held in contempt at this time. No prejudice has resulted from his conduct, a distinguishing feature of the cases cited to us by petitioners. . . .
"This is . . . the first [case] in memory when this court has required public briefs and oral argument on a sealed record. Although we believe this directive was more challenging than confusing, and although the actions complained of here might well be characterized as criminal contempt in a different case, we are inclined to grant the attorney general the benefit of the doubt here. This is an unusually high-profile case attracting keen public interest throughout the state. We caution all parties to resist any impulse to further publicize their respective legal positions, which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding." 280 Kan. at 928-30.
On May 23, 2006, approximately 3 1/2 months after this court released Alpha, District Judge Richard Anderson of Shawnee County, the judge overseeing the inquisition, issued what the record before us reveals as his only written post-Alpha protective order concerning the patient records from the clinics. The order set forth the procedure to be followed to effect the safeguards outlined in Alpha, appointing a Topeka lawyer to assist the judge and act as
"special counsel for adult patients and as guardian ad litem for minor patients for the purpose of making recommendations to the Court to protect the confidentiality of the identity of any patients . . . and to protect against release of sensitive, confidential, and privileged information which is not relevant to the medical procedure and/or the criminal investigation. Special Counsel shall supervise the reproduction and release of copies of all medical records. In addition, Special Counsel shall make duplicate copies of all medical records in the form released to the Attorney General and return complete copies of such copied medical records to the medical facilities."
Judge Anderson would later testify that, aside from this order and earlier nondisclosure provisions contained in the subpoenas directed to the clinics, he relied on a series of conversations with Kline and his subordinates, what he called an oral "working agreement," to control dissemination of information generated in the inquisition, including the redacted patient records. Judge Anderson also would testify that, although he thought the guidelines of Alpha had been adhered to, he believed a parent of a patient described in the redacted records would be able to identify his or her daughter. Judge Anderson trusted Kline to behave ethically and professionally.
"My expectation, as in any case, I have to trust the prosecutor that comes in to open inquisitions not to do things with information that would harm the legal proceeding. So I did not expect anything that would be ascertained as evidence or accumulated as evidence would be shared with the public . . . .
"But all of my focus would be on . . . legitimate law enforcement objectives. I don't believe the public at that stage of the proceeding, the press, or the Legislature for that matter, needs to get involved in the prosecutor's business of prosecuting the crimes or the defendant–affecting the defendant's right to defend the crimes. I feel very strongly about that."
Judge Anderson thus left any restrictions on potential witnesses who were given access to the redacted patient records from the clinics entirely up to Kline and his subordinates.
The redacted records were given to Kline's subordinates on October 24, 2006. They took approximately 2 weeks to make two copies and then return the originals of the redacted records to Judge Anderson.
Shortly after the records were given to Kline, he and two of his subordinates, lawyers Rucker and Stephen Maxwell, presented Judge Anderson with a summary of the records that Kline wanted to disclose publicly. Kline was in the final days of a highly contentious political race to retain his position; his opponent was then Johnson County District Attorney Paul Morrison. According to Judge Anderson, Kline–who had argued unsuccessfully to Judge Anderson while Alpha was pending before this court that the judge should not subject Kline to the nondisclosure provision in the subpoenas directed to the clinics–took an "aggressive" position on the summary and his potential use of it. In Judge Anderson's view, Kline appeared "somewhat desperate" to counter charges advanced by Morrison in the campaign. Kline also told Judge Anderson that he did not believe the judge could control what an attorney general disclosed to the public. Regardless of the merit or lack of merit of that view, Judge Anderson warned Kline that he would have trouble persuading Judge Anderson to rule in his favor on any future inquisition issues if he publicly disclosed information from the patient records. At no point in this discussion with Judge Anderson did Kline, Rucker, or Maxwell divulge any plans for television or other public appearances concerning the inquisition or its results.
On November 3, 2006, the Friday before election day and before Kline's subordinates returned the originals of the redacted records to Judge Anderson, Kline was a guest on a nationally televised program, "The O'Reilly Factor." During the broadcast, host Bill O'Reilly suggested that O'Reilly had been made privy to the contents of the redacted records. Kline later testified that he "certainly" considered his appearance on O'Reilly's show to be appropriate despite this court's cautionary language about publicity in Alpha and apparently despite Judge Anderson's insistence that Kline and his subordinates were bound by the subpoenas' nondisclosure provision. Kline testified that he had decided to appear on the O'Reilly program because his office had been inundated with calls about his intentions, and he wanted to alleviate fears that his office was seeking identities of patients.
Kline's appearance on "The O'Reilly Factor" prompted the clinics to press Judge Anderson to hold Kline in contempt before election day. They also filed a sealed action for writ of mandamus and a motion with this court on the day before election day, November 6, 2006, seeking a stay of the inquisition, sealing of the records from Kline's office, and deposit of the records with a special prosecutor or master appointed to investigate any leak of information from, or other mishandling of, the records.
Morrison defeated Kline in the attorney general's race. Approximately 2 weeks after the election, Judge Anderson declined to launch contempt proceedings against Kline in connection with the O'Reilly show. Although Judge Anderson would later testify that he was "very upset" with Kline for putting himself in a position allowing O'Reilly to claim he had seen the redacted patient records, Judge Anderson had concluded after questioning Kline, Maxwell, and Kline investigator Tom Williams under oath that Kline had not given the records to O'Reilly, if, in fact, O'Reilly had seen them at all. We denied the clinic's November 6 petition for writ of mandamus on November 30, 2006.
During the 2 weeks after the elections, Kline, Rucker, Maxwell, and Williams shared information from the redacted patient records and other inquisition results with at least three potential medical experts, including Dr. Richard Gilmartin, a pediatric neurologist from Wichita, and Dr. Paul McHugh, a psychiatrist from Baltimore, Maryland. Rucker had obtained Gilmartin's name from a representative of Kansans for Life; he would later testify that he may have told the representative about the nature of the records. Kline had obtained McHugh's name from a representative of Women Influencing the Nation. Both Kansans for Life and Women Influencing the Nation are anti-abortion advocacy organizations.
The record before us reflects that Gilmartin took no notes and that no patient records were left with him. Maxwell and Williams evidently left copies of patient records and other inquisition documents with McHugh. These other documents included pregnancy termination information obtained from the Kansas Department of Health and Environment (KDHE) which, when cross-referenced to patient records and/or other sources mined by Kline and his subordinates during the inquisition, enabled Kline to identify patients by name. The record reflects that the time period when Kline and his subordinates were seeking the cross-reference data was before or during the pendency of Alpha. The record is unclear on exactly when McHugh returned the records left with him or whether he first made copies before returning the set he had been given. Judge Anderson had not required Kline or his subordinates to obtain confidentiality agreements from any persons to whom the records themselves or information within them was disseminated; and Kline and his subordinates did not take this step on their own.
On December 11, 2006, Republican precinct committee members in Johnson County selected Kline to complete Morrison's term as Johnson County District Attorney, once Morrison was sworn in as Attorney General on January 8, 2007.
It was in this time frame that Kline and Maxwell conversed with Judge Anderson about Kline's desire to send the patient records produced by the clinics in the inquisition to other prosecutors, specifically mentioning Shawnee, Sedgwick, and Johnson Counties. According to Judge Anderson, Kline and Maxwell did not tell him how this would be accomplished; they did not tell him that the records would not be received in Johnson County until Kline had taken office there; they did not tell him that they also would send the records from WHCS, a clinic in Sedgwick County, to Johnson County. Kline did tell Judge Anderson that the transformation of his Attorney General inquisition into a Johnson County District Attorney investigation would be "seamless." Judge Anderson would eventually testify that, during one of his conversations with Maxwell about the movement of patient records to Johnson County, he told Maxwell, "Just be sure that you do that in a very orderly and regular sort of way."
Shortly before leaving the Attorney General's office, on December 20, 2006, Kline filed charges in Sedgwick County against Dr. George Tiller of WHCS. Kline supported the charges with an affidavit from McHugh, an affidavit from Williams, and information from the redacted patient records. The following day, District Judge Paul Clark dismissed the Sedgwick County charges at the request of Sedgwick County District Attorney Nola Foulston.
On December 27 or 28, 2006, Kline announced that, as Attorney General, he would appoint Wichita lawyer and anti-abortion activist Donald McKinney as a special prosecutor. The clinics filed a joint motion for a protective order with Judge Anderson, seeking to ensure that the patient records produced in the inquisition would remain with Judge Anderson and in the Attorney General's office on Kline's exit from that office. The record reflects that Judge Anderson received this motion on Wednesday, January 3, 2007, but he did not rule on it immediately. Judge Anderson did, however, tell Maxwell that he wanted a full and accurate written report on where all copies of the patient records were as of the time of the transition between Kline and Morrison at the Attorney General's office.
Although Kline later testified that he directed Rucker to transport the records from the Attorney General's office to Johnson County in mid-December 2006, the actual physical movement of the records did not begin until the Friday before Morrison was sworn in as Attorney General, January 5, 2007, and did not end until Kline had been in office as the Johnson County District Attorney for several weeks. In the intervening time, the patient records were stored in more than one automobile; in Maxwell's residence; and, from January 8, 2007, until mid-February 2007, in the dining room of an apartment of another investigator, Jared Reed. The several weeks that the records sat in Reed's dining room included the day that elapsed between the point when Reed's employment with Kline's Attorney General's office ended and the point when his employment by Kline's Johnson County District Attorney's office began.
On Friday, January 5, 2007, the same day that Rucker signed a 6-month contract with McKinney, McKinney's fees to be funded by up to $25,000, apparently from the budget of the Attorney General's office, Williams removed all of the patient records obtained through the inquisition from the Attorney General's office, along with additional investigation materials and records obtained from other agencies, and placed them in a state-owned vehicle. This Friday was to be Maxwell's last day of work for the Attorney General's office. The following day, Saturday, January 6, Williams delivered the records and other materials to Maxwell's residence.
At Maxwell's residence that day, Maxwell and Williams sorted the records for distribution to various places. At some point that day, Williams contacted Reed, who came to Maxwell's residence and witnessed this process. Maxwell also was preparing a Status and Disposition Report, the written report Judge Anderson requested. The patient records and other materials were then locked in the trunk of a state-owned vehicle Williams was driving. Williams returned a set of materials to the Attorney General's office, not including any CHPP or WHCS patient records, and left the rest of the materials sorted earlier at Maxwell's house in the vehicle. The vehicle spent the rest of that weekend parked in a secure state parking lot.
Shortly after 8 a.m. on Monday, January 8, 2007, the day Morrison was to be sworn in as Attorney General and Kline sworn in as Johnson County District Attorney, Williams and Reed met at the Shawnee County courthouse. They left five boxes of investigation materials at Judge Anderson's chambers, as well as a copy of the Status and Disposition Report. Williams and Reed also left several boxes of materials, including patient records, at Shawnee County District Attorney Robert D. Hecht's office.
After these two distributions had been accomplished, Williams received a telephone call from Rucker, who had spoken to Kline that morning before Kline was sworn in as Johnson County District Attorney. Kline had called Rucker to make sure that the patient records would be available in Johnson County and told Rucker for the first time that the materials going there needed to include records from WHCS as well as from CHPP. Kline indicated to Rucker that Judge Anderson had given permission for this to occur. Rucker, in turn, told Williams that the records headed for Johnson County needed to include the records from WHCS as well as CHPP. Williams expressed surprise and displeasure with what he apparently viewed as a last-minute change in his instructions and because the Status and Disposition Report produced and signed by Maxwell and left earlier that morning with Judge Anderson did not state that the WHCS records would go to the Johnson County District Attorney's office. According to Williams, Rucker told him that Kline had nevertheless ordered this action and that Kline had spoken to Judge Anderson about it. Williams asked for written confirmation of this order.
After the call from Rucker, Williams and Reed had to retrieve the patient records that had already been left at Hecht's office. On Rucker's instruction, they then took the records to a downtown Topeka photocopy store. Although Reed's and Williams' recollections vary slightly, apparently Reed began making copies of the WHCS records for use by Kline as Johnson County District Attorney (at the expense of the Attorney General's office) while Williams returned the state automobile they had been using. After the copying was completed, Williams and Reed returned the set meant for Hecht to his office. All of the material intended for the Johnson County District Attorney's office was then transported in Reed's personal automobile and delivered to Reed's apartment, where it was placed in his dining room.
According to the record, at 3:43 that afternoon, several hours after all of the distribution steps were completed and Morrison had been sworn in as Attorney General, in apparent compliance with Williams' request for written confirmation of the earlier order, Rucker sent an electronic mail to Williams. It stated "Per the direction of AG Kline, I am directing you to copy all medical files and AG Kline is directing the copies be delivered . . . to the District Attorney for the 10th Judicial District before noon . . . K. Rucker Chief Deputy Attorney General (sent at 9:30 am)[.]"
Although Kline's subordinates had placed at least three boxes of materials connected to the inquisition at the Attorney General's office before they left it, the precise content of these boxes cannot be determined at this stage because no specific inventory of them was created at the time. We understand, however, as mentioned above, that the boxes contained no copies of the patient records obtained from CHPP or WHCS. On January 9, 2007, Judge Anderson sent a letter to Morrison, directing Morrison to determine whether McKinney possessed any materials in his role as special prosecutor and to supplement the Status and Disposition Report accordingly. He also directed Morrison to communicate with potential expert witness McHugh directly regarding return of the records left with him in Baltimore and offered to permit Morrison to pick up the inquisition evidence that had been left at the judge's chambers by Williams and Reed the day before. The sufficiency of access to inquisition material granted Morrison and, eventually, his replacement as Attorney General, Stephen N. Six, remains under consideration in another original action pending before this court, State ex rel. Six v. Anderson, Case No. 99,050.
Three days later, on January 12, 2007, in response to a letter from Morrison's chief counsel at the Attorney General's office, Kline sent a letter representing, among other things, that a report had been filed with Judge Anderson reflecting Kline's handling of inquisition documents. The Status and Disposition Report, produced and signed by Maxwell and delivered to Judge Anderson, had not been corrected and was never corrected by Kline or by Maxwell or by any other Kline subordinate.