State ex rel. Callahan v. Kinder, WD

• Decision Date: 24 May 1994
• Docket Number: No. WD,WD
• Citation: 879 S.W.2d 677
• Parties: STATE of Missouri, ex rel. Richard G. CALLAHAN, Prosecuting Attorney of Cole County, Missouri, Relator, v. The Honorable Byron L. KINDER and The Honorable James F. McHenry, Circuit Judges for the Nineteenth Judicial Circuit, and the Missouri Department of Corrections, Respondents. 48991.
• Court: Missouri Court of Appeals

Page 677

879 S.W.2d 677

STATE of Missouri, ex rel. Richard G. CALLAHAN, Prosecuting Attorney of Cole County, Missouri, Relator, v. The Honorable Byron L. KINDER and The Honorable James F.

McHenry, Circuit Judges for the Nineteenth

Judicial Circuit, and the Missouri

Department of Corrections, Respondents.

No. WD 48991.

Missouri Court of Appeals,

Western District.

May 24, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 28, 1994.

Richard G. Callahan, Pros. Atty., Cole County, Jefferson City, for relator.

Alex Bartlett, Barbara L. Miltenberger, Husch & Eppenberger, Jefferson City, for Byron L. Kinder and James F. McHenry.

Judy P. Draper, Gen. Counsel, Karolin Solorzano, Dept. Gen. Counsel, Mo. Dept. of Corrections, Jefferson City, for Missouri Dept. of Corrections.

Before LOWENSTEIN, P.J., and BERREY and ELLIS, JJ.

ORIGINAL PROCEEDING IN PROHIBITION AND MANDAMUS

LOWENSTEIN, Presiding Judge.

The issue presented in this case involving alternative requests for extraordinary relief in mandamus, Rule 94, and prohibition, Rule 97, is as follows: May a local court rule require a corrections facility to produce an inmate's medical records as they relate to The Cole County Prosecuting Attorney petitioned this court for extraordinary relief to settle an impasse created when the judges of that circuit, on December 1, 1993, adopted the following Local Rule (Rule):

AIDS and HIV virus, tuberculosis or hepatitis to the court for in camera inspection prior to any court appearance by the prisoner?

"In the Matter of:

"Transportation of Inmates to Cole County Courthouse:

"WHEREAS, it being within the knowledge of this court that certain inmates of the Department of Corrections are infected with hepatitis, tuberculosis and/or suffering from AIDS or HIV virus, or some combination of the above, and

"WHEREAS, it is the responsibility of this court to see to the well-being of those who serve the court as well as the general public, it is

"ORDERED, ADJUDGED AND DECREED that before any prisoner shall be brought from a custodial institution of this state to the courthouse located in Cole County, Missouri, for any purpose whatsoever, the superintendent of the custodial institution will furnish this court, in camera, medical records concerning that prisoner for any infectious disease of whatever nature that his medical record will indicate, in advance of his appearance. Failing to do so, the prisoner will be denied access to this court."

In response, and in refusing to supply the medical information, Corrections Director, Dora Schriro, and her deputy wrote to the court stating statutory and constitutional considerations made inmates' medical records in general, and particularly as to AIDS, confidential and closed even to a court's in camera inspection. Corrections advised the court of its policy of quarantining in its facility an inmate suffering from tuberculosis (TB), and that the individual would not be transferred without precautions and notice to an outside agency. In order to break the impasse, the prosecutor filed for this writ for alternative relief against the respondents, Judge Kinder and Judge McHenry (Judges), to prohibit enforcement of the Rule and, ultimately against the Missouri Department of Corrections (Corrections), in mandamus to comply with the Rule so that he could proceed with the prosecution of twenty-one inmates without facing the possibility of dismissal on the grounds of speedy trial violations. See e.g., People v. Juan R., 153 Misc.2d 400, 589 N.Y.S.2d. 256 (Sup.1992).

This court issued its preliminary order prohibiting Judges from enforcing the Rule requiring prisoner medical records on hepatitis and TB, but, in a preliminary order of mandamus, required Corrections to provide the pertinent inmate records as to AIDS and the HIV virus. The court this day makes absolute the preliminary order relating to hepatitis and TB, quashes the preliminary order in mandamus as against Corrections on AIDS and HIV, and enters a final order prohibiting implementation of the Rule as to records relating to these diseases.

Before discussing the main issue, the Judges' contention that Corrections lacks standing to question the Rule is first addressed: 1) Although they are in adversarial roles in this writ action, the Judges and Corrections are both respondents. Corrections did not bring this action, therefore, its "standing to sue" is not an issue; 2) even if Corrections had brought this action, the Rule at issue requires Corrections to provide the pertinent medical records, which would provide it standing as custodian of medical records to protect those records from an unjustified intrusion. United States v. Westinghouse Electric Corp., 638 F.2d 570, 574 (3rd Cir.1980); See Mann v. University of Cincinnati v. Jones, 824 F.Supp. 1190, 1199 (S.D.Ohio 1993); 3) this allegation confuses the concepts of standing and indispensable parties. State ex. rel. Twenty-Second Judicial Circuit, 823 S.W.2d 471, 474-75 (Mo. banc 1992). "Standing to sue is an interest in the subject matter of the suit which, if valid, gives that person a right to relief." Id. at 475. Such is the interest of Corrections in the case at bar. It is also noted the "threshold requirement for standing is extremely low where mandamus is brought to enforce a nondiscretionary duty allegedly required of a public official. Even the slightest interest is sufficient to support standing to bring mandamus The reasons given for promulgation of the Rule are now summarized:

in such circumstances." Id. It is ruled Corrections does have standing to assert a denial of providing inmates' medical records.

1. "To assure that proper precautions are taken with particular inmates who have communicable diseases", "in order to protect the well being of court personnel as well as the general public", because "a large number of inmates of ... [Corrections] are infected with infectious hepatitis, tuberculosis and/or are suffering from AIDS or the HIV virus."

2. Without such information, there is a danger to employees and the public. By receiving advance notice of prisoners with these diseases, "adequate precautions can be taken." These precautions would include having additional bailiffs and increasing ventilation in the courtroom.

3. In a letter to Corrections, the Judges said: "... we have had physical altercations here in the recent past which have involved injury with ensuing loss of blood, and perhaps exchange of blood between bailiffs and inmates. Our concern is also for defense counsel...." "As you are aware, inmates are brought to court pursuant to the court's issuing a writ of habeas corpus ad prosequendum. Concern was also expressed as to the welfare of jury venires, witnesses and the general public. The purpose of the above order is to advise Corrections that all requests for such writs will be denied unless the necessary medical information is received." The Judges have reported knowledge of several public defenders who have recently been diagnosed with TB.

Although the Rule at issue appears to be worded so that any county jail or state correctional facility would be subject to supplying the inmate's medical records, this opinion will address implications only as to our state system; however, the effect of the Order in Prohibition entered this day will be applicable to any local or other facility as well as Corrections. Likewise, the Rule would read so as to require a facility housing an inmate appearing in Cole County Circuit Court to divulge to the court any infectious disease, which could include diseases other than those specifically enumerated. Again, despite the more far-reaching scope of the Rule, this opinion will only cover HIV, AIDS, TB and hepatitis, with primary focus on HIV and AIDS records. Early on, Corrections advised the Judges that inmates with active TB, were, under existing department policy, being quarantined obviating any need for the Rule. No reason has been advanced for requiring medical information about hepatitis, so no analysis will be given for making absolute the prohibition as to these medical records. Therefore, since the focus of this Rule appears to be about HIV and AIDS, and the parties' arguments before this court are almost exclusively about that disease, this opinion will deal with HIV and AIDS records.

AIDS is a viral disease which weakens and then destroys the body's immune system; it is caused by the Human Immunodeficiency Virus which attacks the T-lymphocyte cells, which are part of the body's immune system. Doe v. Barrington, 729 F.Supp. 376, 380 (D.N.J.1990). The infectious diseases which attack the body occur due to a lack of immunity (i.e., pneumonia), frequently lead to death. Id. AIDS consists of the HIV virus, plus one or more infectious or "opportunistic" diseases which the body has been unable to ward off. Estate of Behringer v. Princeton Med. Ctr., 592 A.2d 1251, 1267. The "incubation period between HIV infection and AIDS may range from a period of months to several years." Id. at 1267. HIV is transmitted through contact with contaminated blood, semen, or vaginal fluids, Doe, 729 F.Supp. at 380, as well as by an injection from a needle which breaks the skin. Behringer, 592 A.2d at 1267; Harris v. Thigpen, 941 F.2d 1495, 1503 (11th Cir.1991). The public's perception of HIV-AIDS is that it is contracted by homosexual activity and intravenous drug use. The disclosure of an individual's HIV status is a greater intrusion than disclosure of most other medical information because "the public considers the virus to be highly communicable ... and is associated with lifestyles of homosexuality, sexual promiscuity and drug use." Loeb, Protecting the Right to Informational Privacy for HIV-Positive Prisoners, 27 Col.J.L. & Soc.Probs. 269, 271-

                272 (1993).  "... the privacy interest in one's exposure to the AIDS virus is even greater than one's privacy interest in ordinary medical records because of

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