State of Kan. v. COMPREHENSIVE HEALTH of PLANNED PARENTHOOD of Kan.

• Decision Date: 15 October 2010
• Docket Number: 726.,No. 100,100
• Parties: STATE of Kansas, Appellant, v. COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI, INC., Appellee.
• Court: Kansas Supreme Court

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STATE of Kansas, Appellant,
v.
COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI, INC., Appellee.

No. 100,726.

Supreme Court of Kansas.

Oct. 15, 2010.

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Syllabus by the Court

1. It is the responsibility of an appellate court to consider the issue of jurisdiction sua sponte if it is determinative of an issue before it.

2. The State's Notice of Interlocutory Appeal was insufficient to create appellate jurisdiction over a subpoena duces tecum directed to the Interim Director for the Center for Health and Environmental Statistics at the Kansas Department of Health and Environment.

3. Interpretation of a statute raises a question of law over which an appellate court has unlimited review. The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature's intent.

4. K.S.A. 60-245(c)(3)(A) governs a district court's evaluation of a motion to quash a subpoena. Its subsection (iii) states that a court shall quash or modify a subpoena if it “requires disclosure of privileged or other protected matter and no exception or waiver applies.”

5. Under K.S.A. 65-445, reports submitted by an abortion clinic to the Kansas Department of Health and Environment cannot be released to a district attorney. The reports thus qualify as “other protected matter” under K.S.A. 60-245(c)(3)(A)(iii), and any subpoena from a district attorney, insofar as it seeks production of the reports themselves or testimony revealing their contents, must be quashed.

6. Employees of the Kansas Department of Health and Environment may be subpoenaed to testify in a criminal prosecution about the general practices of the agency regarding reports submitted by abortion clinics, as well as general information about the agency's response to an earlier inquisition.

7. Under K.S.A. 65-445, a judge who presided over an Attorney General's inquisition and who thus became a custodian of reports submitted by an abortion clinic to the Kansas Department of Health and Environment cannot be ordered to bring those reports to court to facilitate a district attorney's criminal prosecution.

8. A judge who becomes a custodian of abortion clinic patient records that have been redacted to remove patient-identifying information and then produced in an inquisition may be ordered to bring those documents to court to facilitate a criminal prosecution based on those records.

9. A judge may be ordered to produce a Memorandum Decision and a letter to counsel arising out of an inquisition over which the judge presided to facilitate a criminal prosecution. Special arrangements for transmission and storage of the documents may be required if the documents are under seal.

10. Asking a district judge to testify is a serious matter and creates sensitive problems requiring delicate attention. Generally, absent a showing of extraordinary need, a judge may not be compelled to testify about matters observed as a consequence of the performance of his or her official duties.

11. Under the unusual facts of this case, fact witness and document custodian testimony of the judge who presided over an inquisition may be permitted on certain subjects during a criminal prosecution arising out of the inquisition. However, the judge, by virtue of his participation in the inquisition, is not automatically

transformed into an expert witness who may give opinion testimony

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on the issue of the defendant clinic's criminal culpability.

12. A lawyer designated by a judge presiding over an inquisition to act as special counsel for patients whose abortion records were redacted and then produced in the inquisition may be ordered to produce his affidavit and correspondence with defense counsel to facilitate a criminal prosecution.

13. Under the unusual facts of this case, fact witness and document custodian testimony of the lawyer designated by the judge presiding over an inquisition to act as special counsel for patients whose abortion records were redacted and then produced in the inquisition may be permitted on certain subjects during a criminal prosecution arising out of the inquisition. However, the lawyer, by virtue of his participation in the inquisition, is not automatically transformed into an expert witness who may give opinion testimony on the issue of the defendant clinic's criminal culpability.

Steven J. Obermeier, assistant district attorney, argued the cause, and Phill Kline, district attorney, and Steve Six, attorney general, were with him on the briefs for appellant.

Pedro L. Irigonegaray, of Irigonegaray & Associates, argued the cause, and Robert V. Eye and Elizabeth R. Herbert, of the same firm, were with him on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

This interlocutory appeal is the latest in a related series of actions arising out of an inquisition conducted by former Attorney General Phill Kline regarding the performance of abortions in Kansas. In this case, we are asked to rule on whether a Johnson County district judge erred in quashing subpoenas directed at various employees of the Kansas Department of Health and Environment (“KDHE”) and at Shawnee County District Judge Richard D. Anderson and attorney Steven W. Cavanaugh.

Although the issues before us are simply summarized, their resolution is not because they arise in a complicated factual and procedural context, revealed in fits and starts over the life of a series of cases. Like icebergs, the appearance of the issues above the waves is relatively benign; their mass and shape below the waves goes unnoticed or ignored at peril.

We therefore begin by setting forth a list of the cases in the series and then a chronology of pertinent events, taking care to guard the twin imperatives of patient privacy and criminal prosecution that we discussed in our first opinion in these related actions, Alpha Medical Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006). Although not all of the information we review below has become public knowledge since the Alpha decision, much of it has. In addition, to the extent any of the following goes beyond what has previously been made or become public, we take care to ensure that no privacy or law enforcement goal is threatened. The chronology, dependent in part on documents and transcripts never supplied to this court before this appeal, is necessary to an understanding of our analysis and rulings.

We also emphasize that nothing in this opinion should be interpreted by the parties as license to publish or otherwise disseminate material sealed under our previous orders or previous orders of our district courts. As in Alpha, “[w]e caution all parties to resist” any such impulse, “which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding.” 280 Kan. at 930, 128 P.3d 364.

The Series of Cases

• Case No. 04-IQ-03. Inquisition launched by Kline while Attorney General filed in district court in Shawnee County (“the Inquisition”).

• Case No. 93,383 in the Supreme Court. Petition for Writ of Mandamus filed by two abortion clinics regarding the Inquisition subpoenas for patient records. This petition led to this court's opinion, Alpha, 280 Kan. at 903 [128 P.3d 364] (“ Alpha ”).

• Case No. 97,554 in the Supreme Court. Petition for Writ of Mandamus filed by two abortion clinics regarding Kline's appearance

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before the 2006 election on “The O'Reilly Factor” and other alleged dissemination of information from patient records (“the publicity mandamus action”).

• Case No. 98,747 in the Supreme Court. Petition for Writ of Mandamus filed by Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. (“CHPP”), regarding Kline's movement of records from Attorney General's office to Johnson County District Attorney's office. This petition led to this court's opinion in Comprehensive Health of Planned Parenthood of Kansas v. Kline, 287 Kan. 372, 197 P.3d 370 (2008) (“ Comprehensive Health ”).

• Case No. 07 CR 2112. Criminal prosecution filed by former Attorney General Paul Morrison in Sedgwick County against Dr. George Tiller, a Wichita physician who performed abortions, which ended in an acquittal after jury trial (“the Tiller case”).

• Case No. 99,050 in the Supreme Court. Petition for Writ of Mandamus filed by Morrison against Judge Anderson seeking surrender of redacted patient records produced in the Inquisition and left in the judge's custody (“ Morrison v. Anderson ”).

• Case No. 07 CR 2701. Criminal prosecution filed by Kline while Johnson County District Attorney against CHPP, which is the case underlying this appeal (“this criminal prosecution”).

Other proceedings before grand juries in Johnson and Sedgwick Counties regarding abortion providers, including one that led to a Petition for Writ of Mandamus in this court, eventually denied, and various related disciplinary matters are not listed above. Although some of these proceedings and disciplinary matters were contemporaneous with the cases on the list, they had no direct effect on their pursuit or disposition.

Factual and Procedural Background

The first crystals of the particular icebergs before us now were formed...