Alpha Medical Clinic v. Anderson
| Decision Date | 03 February 2006 |
| Docket Number | No. 93,383.,93,383. |
| Citation | 128 P.3d 364 |
| Parties | 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. |
| Court | Kansas Supreme Court |
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.
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.
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?
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...
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