Evergreen Ass'n, Inc. v. Schneiderman

• Decision Date: 21 June 2017
• Citation: 54 N.Y.S.3d 135,153 A.D.3d 87
• Parties: In the Matter of EVERGREEN ASSOCIATION, INC., doing business as Expectant Mother Care/EMC Frontline Pregnancy Centers, appellant, v. Eric T. SCHNEIDERMAN, etc., respondent.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 87

54 N.Y.S.3d 135

In the Matter of EVERGREEN ASSOCIATION, INC., doing business as Expectant Mother Care/EMC Frontline Pregnancy Centers, appellant,

v.Eric T. SCHNEIDERMAN, etc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 21, 2017.

American Catholic Lawyers Association, Inc., Bronxville, NY (Christopher A. Ferrara of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, NY (Richard P. Dearing and Karen W. Lin of counsel), respondent pro se.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

COHEN J.

Introduction

The petitioner is a not-for-profit corporation committed to providing women experiencing unplanned pregnancies with alternatives to abortion. To this end, the petitioner operates 12 crisis pregnancy centers in New York City where its largely volunteer staff gives pregnant women advice and emotional support aimed at encouraging them not to terminate their pregnancies and to keep their babies. Following a series of public hearings that examined the practices of centers such as those operated by the petitioner, the Attorney General of the State of New York launched an investigation into whether the petitioner was engaging in the unauthorized practice of medicine through conduct including locating its centers in medical buildings and making them look like medical offices, requesting the medical histories of its clients, performing pregnancy tests and sonograms, estimating gestational age, and evaluating fetal health. As part of his investigation, the Attorney General served the petitioner with an investigatory subpoena duces tecum demanding documents relating, inter alia, to the petitioner's corporate structure and facilities, the names, education, and credentials of all of its staff members, the materials it provides to clients, its medical services, equipment, and supplies, and the source of its funding. The petitioner countered by commencing this proceeding to quash the subpoena, claiming that it was a politically motivated attack on its First Amendment right to advocate pro-life views. For the reasons that follow, we hold that although the Attorney General was authorized to serve the subpoena and the materials sought are reasonably related to the investigation, the subpoena infringes on the First Amendment right of the petitioner and the petitioner's staff members to freedom of association, and is not sufficiently tailored to serve the compelling investigative purpose for which it was issued. Accordingly, we limit the scope of the subpoena to more narrowly tailor it to the Attorney General's legitimate investigatory needs.

Background

The petitioner, Evergreen Association, Inc., doing business as Expectant Mother Care/EMC Frontline Frontline Pregnancy Centers (hereinafter Evergreen), is a not-for-profit corporation which operates crisis pregnancy centers throughout New York City. Evergreen states that it is "dedicated to providing women, free of charge, with alternatives to abortion so that they may keep and love their babies." According to Evergreen, its centers rely heavily on unpaid volunteers, who provide women experiencing unplanned pregnancies with nonmedical advice, emotional support, and material assistance. The centers also provide a variety of pregnancy-related services, including pregnancy testing, ultrasounds, and sonograms.

Following a series of public hearings conducted in 2010 and 2011 into the practices of crisis pregnancy centers, the New York City Council found that Evergreen engaged in conduct which could constitute the unauthorized practice of medicine, including evaluating fetal health and requesting the medical history of clients. In October 2011, a televised news investigation of Evergreen's practices reported that Evergreen made diagnoses of gestational age and situated its centers in medical buildings making them appear like medical offices. In a radio interview that same year, the president of Evergreen refused to answer a question posed as to whether Evergreen employed medical personnel. As a result of these public allegations and investigations, the respondent, Eric T. Schneiderman, in his capacity as Attorney General of the State of New York, launched an investigation into Evergreen's conduct. According to the Attorney General, his independent investigation yielded additional information and evidence that Evergreen may be engaged in the unauthorized practice of medicine, including more proof that Evergreen facilities are located in medical buildings and designed like medical clinics, that Evergreen refers to its clients as patients and requests their medical information, and that Evergreen conducts pregnancy tests and makes diagnoses regarding pregnancy, ectopic pregnancy, and gestational age.

On May 17, 2013, the Attorney General served a subpoena duces tecum on Evergreen, requesting copies of documents relating to its operations for the preceding three-year period. The subpoena advised Evergreen that the Attorney General was conducting an investigation into possible violations of Executive Law § 63(12) involving the unauthorized practice of medicine, and demanded 10 categories of documents relating, inter alia, to Evergreen's corporate structure and facilities, the education and credentials of its staff, the materials it provided to clients, its medical equipment and supplies, and the source of its funding. More specifically, the subpoena demanded:

"1. Documents sufficient to show [Evergreen's] organizational and corporate structure including the names and addresses of any parent or subsidiary corporation, certificates of incorporation and bylaws.

"2. Documents sufficient to identify the following information for each Center:

"(a) Name under which the Center operates or advertises;

"(b) Address of the Center;

"(c) Telephone number and email address used by the Center;

"(d) Hours during which the Center is open for seeing Clients;

"(e) Names of any medical or counseling facilities that share office space with or operate in the same building as the Center; and

"( [f] ) Services provided at the Center.

"3. Documents sufficient to identify the following information for every Staff person, organized by Center location:

"(a) Name of Staff person and service provided by such Staff person;

"(b) Date of hire, termination (if any) and schedule for such Staff;

"(c) Credentials, degrees and relevant education, including all professional licenses and certifications by any local, state or federal government Agency; and

"(d) Staff hierarchies and reporting responsibilities for each Center.

"4. Documents sufficient to identify all policies, practices and procedures regarding responding to Clients' inquiries or providing services to Clients including, but not limited to, training materials, Staff handbooks, scripts, and other documents relied on to provide services to Clients, as well as any documents concerning referrals of Clients to medical, counseling, social or other services, including sonography or ultrasound, whether provided at any Center or other location.

"5. Documents sufficient to identify exemplars of all registration forms, documents, pamphlets and educational materials provided to Clients, whether to be kept or maintained by EMC or the Clients, and all forms completed by Staff regarding Clients.

"6. Documents sufficient to identify all entities or persons to whom EMC refers Clients including, but not limited to, Agreements or contracts between EMC and with such entities or persons.

"7. Documents sufficient to show records for the purchase, donation, leasing, or other acquisition of any medical or medical-related supplies, equipment, or machines at any Center.

"8. Documents sufficient to show all advertisements and promotional literature, brochures and pamphlets that EMC provided or disseminated to the public in New York State, including but not limited to, websites, pamphlets, billboards, and radio, television or internet broadcasts.

"9. All documents concerning any grant or other monies received from a local, New York State, or federal governmental Agency.

"10. Copies of all written complaints, formal or informal, concerning services provided or performed by EMC."

By letter dated June 8, 2013, Evergreen asked the Attorney General to withdraw the subpoena, contending that it threatened to violate Evergreen's constitutional rights, and was an overbroad and politically motivated "fishing expedition." By letter dated June 14, 2013, the Attorney General notified Evergreen of his refusal to withdraw the subpoena.

Evergreen responded by commencing this proceeding for a protective order and to quash the subpoena, arguing that the Attorney General did not have a factual basis or legal authority to issue the subpoena, and that the subpoena violated its First Amendment rights and the First Amendment rights of its staff and clients. With regard to the existence of a factual basis to issue the subpoena, Evergreen noted that the instant investigation mirrored a 2002 investigation in which the then Attorney General withdrew an almost identical subpoena because there was no actual complaint or evidence to justify its issuance. Evergreen also maintained that it did not engage in any commercial transactions and provided all services pro bono, relying heavily on unpaid volunteers. According to Evergreen, these volunteers provided only nonmedical advice, within the common knowledge of informed lay people, and contained pro-life opinions that any American had the right to express and that did not require a license to espouse. Evergreen further submitted that Executive Law § 63(12) did not authorize the Attorney General to issue the subpoena because that statute pertains solely to entities engaged in business transactions, and did not apply to Evergreen because it is a not-for-profit organization which does not engage in commercial transactions.

Addressing the impact of the subpoena, Evergreen alleged that the subpoena...