Commonwealth Of Ky. v. Chauvin

• Decision Date: 17 June 2010
• Docket Number: No. 2008-SC-000509-MR.,2008-SC-000509-MR.
• Citation: 316 S.W.3d 279
• Parties: COMMONWEALTH of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, Appellant,v.Honorable A.C. McKay CHAUVIN, Judge, Jefferson Circuit Court and Matthew Baumler; and Christopher Warner (Real Parties in Interest), Appellees.
• Court: United States State Supreme Court — District of Kentucky

316 S.W.3d 279

Supreme Court of Kentucky.

COMMONWEALTH of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES, Appellant,v.Honorable A.C. McKay CHAUVIN, Judge, Jefferson Circuit Court and Matthew Baumler; and Christopher Warner (Real Parties in Interest), Appellees.

No. 2008-SC-000509-MR.

June 17, 2010.

COPYRIGHT MATERIAL OMITTED

Ronald W. Crawford, Cabinet for Health & Family Services, Frankfort, KY, for appellant.

Arch Cox McKay Chauvin, Judge, Jefferson Circuit Court, Louisville, KY, for appellee.

William Philip Koehler, III, Louisville, KY, for Matthew Baumler, Real Party in Interest.

Kenneth P. O'Brien, Sewell and Associates, Louisville, KY, for Christopher Warner, Real Party in Interest.

Jack Conway, Attorney General, Ryan M. Halloran, Jennifer B. Hans, Tad Thomas, Assistant Attorneys General, Office of the Attorney General, Frankfort, KY, for Amicus Curiae, Commonwealth of Kentucky, Office of the Attorney General.

Gerald R. Toner, O'Bryan, Brown & Toner, PLLC, Louisville, KY, for Amicus Curiae, Kentucky Defense Counsel.

Opinion of the Court by Justice NOBLE.

Appellant, the Commonwealth of Kentucky, Cabinet for Health and Family Services, appeals to this Court from an order of the Court of Appeals denying in part and granting in part its petition for a writ of prohibition. For the reasons set forth below, the order of the Court of Appeals is reversed, and the case is remanded with instructions to grant the writ in full as requested by the Cabinet.

I. Background

This case began with a discovery request by Christopher Warner, a defendant in a civil suit at the circuit court. Warner sought discovery of a Kentucky All-Schedule Prescription Electronic Reporting (KASPER) record on the plaintiff in the suit, Matthew Baumler. These records are held by the Cabinet for Health and Family Services, which compiles them pursuant to KRS 218A.202. Subsection (6) of that statute says that these records may be disclosed “only ... to persons and entities authorized to receive that data under this section,” and that “[d]isclosure to any other person or entity ... is prohibited unless specifically authorized by this section.” Civil litigants are not authorized persons under the statute, nor are their attorneys.

The circuit court saw a conflict between this subsection, which prohibits disclosure, and CR 26.02(1), which allows discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” The court resolved this apparent conflict by ruling, via interlocutory order, that the statute violated the separation of powers doctrine in sections 27 and 28 of the Kentucky Constitution, in that it affected practice and procedure of the courts, which falls within the exclusive rulemaking power of this Court, Ky. Const. § 116. After finding that Warner showed good cause that the record was discoverable, the court ordered that Baumler's record be conditionally released to Warner's attorney, despite the statutory prohibition.

Appellant sought a writ of prohibition at the Court of Appeals to bar enforcement of the order to disclose the materials. The Court of Appeals denied the writ requested by the Cabinet, agreeing with the circuit court that the records must be released because the statute violated the separation of powers doctrine. However, the Court of Appeals granted a writ in part, albeit not the one the Cabinet requested, requiring the circuit court to first conduct an in camera review to determine what parts of the records, if any, were relevant discovery material before allowing any disclosure to the parties.

The Cabinet now appeals to this Court as a matter of right. Ky. Const. § 115.

II. Analysis

A. Availability of the Writ

“[W]rits of prohibition ... are extraordinary in nature, and the courts of this Commonwealth ‘have always been cautious and conservative both in entertaining petitions for and in granting such relief.’ ” Kentucky Employers Mut. Ins. v. Coleman, 236 S.W.3d 9, 12 (Ky.2007) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961)). This Court has said that “[e]xtraordinary writs are disfavored, but may be appropriate when a lower court is acting without jurisdiction or acting erroneously within its jurisdiction.” Buckley v. Wilson, 177 S.W.3d 778, 780 (Ky.2005).

The issue here is not whether the circuit court had jurisdiction to rule on the constitutionality of KRS 218A.202(6) or to enter a discovery order; it clearly did. Indeed, the Cabinet does not allege lack of jurisdiction. Rather, this case falls under the second class of writs, and so the question is whether the court acted erroneously within its jurisdiction by allowing discovery of the materials.

To effectuate the policy of granting writs in only extraordinary circumstances, a petitioner claiming that the trial court is acting erroneously within its jurisdiction must show that great and irreparable harm will result, and that there would be no adequate remedy by appeal. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004). This test determines whether the remedy of a writ is even available, and only if a petitioner satisfies this test will we turn to the merits. Bender, 343 S.W.2d at 801. In applying this threshold test, the petitioner's allegations are assumed to be true. Thus, the Court assumes here that the statute creates a privilege, and that the circuit court's order breaches that privilege.

Applying the test to these facts, “[t]here is no adequate remedy by appeal because privileged information cannot be recalled once it has been disclosed.” St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771, 775 (Ky.2005); accord Bender, 343 S.W.2d at 802 (“Once the information is furnished it cannot be recalled.... The injury suffered by petitioners, assuming their adversaries have no right to this disclosure under the Civil Rules, will be complete upon compliance with the order and such injury could not thereafter be rectified.... Petitioners have no other adequate remedy.”).

As to the second requirement, however, a breach of privilege is usually an insufficient showing of harm, at least under the strict terms of the standard, because the breach is not “a ruinous injury.” St. Luke Hosps., 160 S.W.3d at 775; accord Bender, 343 S.W.2d at 802. Nevertheless, “[w]e have previously held that extraordinary relief is warranted to prevent disclosure of privileged documents.” St. Luke Hosps., 160 S.W.3d at 775; accord McMurry v. Eckert, 833 S.W.2d 828, 830 (Ky.1992); Bender, 343 S.W.2d at 802-03. This Court has done so under a narrow exception to the harm requirement, namely, the “certain special cases” exception where the writ can be granted “in the absence of a showing of specific great and irreparable injury ... provided a substantial miscarriage of justice will result if the lower court is proceeding erroneously and correction of the error is necessary and appropriate in the interest of orderly judicial administration.” Bender, 343 S.W.2d at 801. The violation of a privilege is such a case. Id. at 802 (stating, regarding a privilege, that “in a certain class of cases, of which this is one, the showing of such grievous injury is not an absolute necessity”); see also Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky.2004) (noting that a writ is proper to stop the “breaching [of] a tightly guarded privilege”).

Thus, because the Cabinet has alleged that the circuit court's order will violate a privilege, a writ of prohibition is available as a remedy. Having established that the remedy is available, in part by concluding that the “certain special cases” exception to the harm requirement applies, this Court may now turn to the merits of the issues presented. Bender, 343 S.W.2d at 802.

B. Separation of Powers and Statutory Privileges

The issue presented by the Cabinet is whether, in light of KRS 218A.202(6), a trial court can order discovery of a KASPER report in a civil case. The Cabinet argues that the statute creates a privilege which bars such discovery. Warner argues that the statute is void as a violation of the separation of powers doctrine in the Kentucky Constitution because it affects practice and procedure of the Court of Justice, and that the statute does not create a privilege.

Before addressing these arguments, it is worth noting that, under the civil rules, privileged material is not subject to discovery, regardless of the source of the privilege. CR 26.02(1) says that a trial court shall allow discovery “regarding any matter not privileged, which is relevant to the subject matter involved in the pending action.” (Emphasis added.) The rule, by its own terms, does not permit discovery of privileged matters. KRE 501 says that privileges can be granted by the Constitution, rules promulgated by this Court or by statute. Thus, Kentucky rules allow for the creation of statutory privileges. To the extent that the KASPER statute creates a privilege, there is no conflict with the rules. The circuit court erred in finding such a conflict.

This, of course, does not resolve the issue, because the statute could still violate the constitution or not actually create a privilege. Turning to those issues, this Court concludes that the legislature has the power to create privileges, both under our rules and as part of its inherent power to enact substantive law, and that the statute indeed creates a privilege.

Kentucky evidentiary rules recognize the ability of the legislature to control their contents, presumably including privileges, limited only by section 116 of the Kentucky Constitution. For example, this Court must report rule amendments to the legislature, which may then disapprove the rules or by inaction allow them to become effective. KRE 1102(a). In addition, the legislature “may amend any proposal reported by the Supreme Court,” and it “may adopt amendments or additions to the Kentucky Rules of Evidence not reported” to them. KRE 1102(b).

More importantly, the legislature has the inherent power to create...