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Tiller v. Corrigan

May 6, 2008

GEORGE R. TILLER, M.D., AND WOMEN'S HEALTH CARE SERVICES, INC., PETITIONERS,
v.
HON. MICHAEL CORRIGAN, PRESIDING JUDGE, AND HON. PAUL BUCHANAN, ASSIGNED SENIOR JUDGE, BOTH OF THE EIGHTEENTH JUDICIAL DISTRICT COURT, SEDGWICK COUNTY, KANSAS, RESPONDENTS.
JANE DOE AND ANN ROE, ON BEHALF OF THEMSELVES AND SIMILARLY SITUATED PATIENTS, PETITIONERS,
v.
HON. MICHAEL CORRIGAN, PRESIDING JUDGE, AND HON. PAUL BUCHANAN, ASSIGNED SENIOR JUDGE, BOTH OF THE EIGHTEENTH JUDICIAL DISTRICT COURT, SEDGWICK COUNTY, KANSAS, RESPONDENTS.
STEPHEN N. SIX, KANSAS ATTORNEY GENERAL, PETITIONER,
v.
THE HONORABLE MICHAEL CORRIGAN AND PAUL BUCHANAN, JUDGES OF THE EIGHTEENTH JUDICIAL DISTRICT COURT, SEDGWICK COUNTY, KANSAS, RESPONDENTS.



SYLLABUS BY THE COURT

1. The provisions of K.S.A. 22-3001 that provide for a citizen-petition grand jury do not violate the separation of powers doctrine and are not facially unconstitutional.

2. The authority of a grand jury under K.S.A. 22-3008(1) to issue subpoenas and other process includes the authority to issue subpoenas duces tecum.

3. When a grand jury subpoena duces tecum is challenged on the ground that the materials sought are irrelevant, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the grand jury seeks will produce information relevant to the general subject of the grand jury's investigation.

4. When a subpoena recipient moves to quash a grand jury subpoena duces tecum and makes an initial showing that the subpoena is overly burdensome or intrudes on a privacy interest, the district court must balance the grand jury's need for the subpoenaed material against the burden or privacy intrusion upon the subpoena recipient.

5. The investigatory powers of a grand jury are not unlimited. Grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or with an intent to harass.

6. Three federal constitutional privacy interests are subject to infringement by a subpoena for the production of abortion clinic patient records: (1) the right to maintain the privacy of certain information, (2) the right to obtain confidential health care, and (3) the fundamental right of a pregnant woman to obtain a lawful abortion without the government imposing an undue burden on that right.

7. An individual's right to informational privacy is not absolute, but rather it is a conditional right which may be infringed upon a showing of proper governmental interest.

8. The State has a compelling interest in pursuing criminal investigations. However, the State's right to invade patient privacy for investigative purposes is not absolute.

9. When a grand jury subpoena duces tecum seeking the medical records of abortion clinic patients is challenged on the basis that it invades the patients' constitutional privacy interests, the district court must evaluate the motion to quash by weighing the competing interests of the State and the patients. This analysis includes consideration of 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.

10. If and when a district court orders the production of abortion clinic patients' records, the court must permit the subpoena recipient to redact all patient-identifying information from the subpoenaed records. Further, the records are to be submitted for review by an independent attorney and independent physician, who are to redact all irrelevant information from the medical records, regardless of whether such additional redactions would be considered patient-identifying information.

11. Prior to submission of redacted abortion clinic patient records to a grand jury, a district court shall issue a protective order prohibiting the distribution or dissemination of any information from the patient records outside the grand jury proceeding, including but not limited to witnesses appearing before the grand jury and experts to whom the records are referred.

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

Original actions in mandamus.

Writs of mandamus granted in part and cases remanded to district court with directions.

These three consolidated original actions in mandamus were prompted by subpoenas duces tecum issued by a Sedgwick County grand jury summoned in response to a citizen petition under K.S.A. 22-3001, which called for investigation of alleged illegal abortions and other violations of the law by George R. Tiller, M.D., and others performing professional services at Women's Health Care Services, Inc. (WHCS), in Wichita. The respective Petitioners are: (1) George R. Tiller, M.D., and WHCS; (2) Jane Doe, Ann Roe, Sarah Coe, and Paula Poe, on behalf of themselves and similarly situated patients (Patients); and (3) Stephen N. Six, Kansas Attorney General (AG).

The subpoenas duces tecum that remain under challenge in this consolidated action are as follows:

A. A subpoena signed by Judge Michael Corrigan on or about January 22, 2008, identifying Ann Swegle (Deputy District Attorney) as attorney for the plaintiff, and directing the records custodian for WHCS to appear at the Sedgwick County Courthouse on February 1, 2008, at 9 a.m. to testify on behalf of the plaintiff, and further reciting:

"DUCES TECUM:

"Copies of all health care records of each patient who received an abortion at Women's Health Care Services, Inc., or Women's Health Care Services, P.A., from July 1, 2003, through January 18, 2008, when the gestational age of each patient's fetus was determined to be 22 weeks or more, specifically including all records required to be made or maintained pursuant to K.S.A. 65-6703.*

"*Counsel for Women's Health Care Services, Inc., may redact all personal identity indicators from the copies of the records for each patient including patient name; the day and month of the patient's birth; patient's social security number; photocopies of any patient identity documents; any insurance policy information; identification of any individuals accompanying the patient to Women's Health Care Services; patient's residential address; patient's telephone number(s); patient's occupation; and patient's emergency contact information."

The subpoena specifically stated that it required the personal attendance of the business records custodian and the production of original records and that delivering copies of the records to the court clerk would not be deemed sufficient compliance with the subpoena. Reiterating that point, the subpoena stated: "A custodian of the records must personally appear with the original records."

B. A subpoena signed by Judge Michael Corrigan on January 23, 2008, identifying Swegle as attorney for the plaintiff, and directing the records custodian for WHCS to appear at the Sedgwick County Courthouse on February 1, 2008, at 9 a.m. to testify on behalf of the plaintiff, and further reciting:

"DUCES TECUM:

"Copies of all health care records of each patient who consulted a physician or physicians at Women's Health Care Services, Inc. or Women's Health Care Services, P.A. from July 1, 2003, through January 18, 2008, when the gestational age of each patient's fetus was determined to be 22 weeks or more but the patient did not receive an abortion because there was not a determination that a continuation of the patient's pregnancy would cause a substantial and irreversible impairment of a major bodily function by two physicians who were not legally and financially affiliated.*

"*Counsel for Women's Health Care Services, Inc. may redact all personal identity indicators from the copies of the records for each patient including patient name; the day and month of the patient's birth; patient's social security number; photocopies of any patient identity documents; any insurance policy information; identification of any individuals accompanying the patient to Women's Health Care Services; patient's residential address; patient's telephone number(s); patient's occupation; and patient's emergency contact information."

As with the first subpoena, this one specifically required the personal attendance of the business records custodian and the production of the original records.

C. A subpoena signed by Judge Michael Corrigan on January 30, 2008, identifying Swegle as attorney for the plaintiff, and directed to Veronica Dersch (in the Office of the Attorney General), commanding an appearance in the Sedgwick County Courthouse at 9 a.m. on February 6, 2008, to testify on behalf of the plaintiff, and further reciting:

"DUCES TECUM copies of all health care records obtained from Women's Health Care Services, P.A., in connection with subpoenas issued in an inquisition commenced by Attorney General Phil Kline and referenced in Alpha Medical Center v. Honorable Richard Anderson, 280 Kan. 903 (2006), which relate to abortions performed on or after July 1, 2003, where the gestational age of each fetus was determined to be 22 weeks or more."

Tiller and WHCS moved to quash the two subpoenas directed at WHCS's records custodian, claiming they encompassed more than 2,000 patient records and thus subjected the recipient to an undue burden, as contemplated by K.S.A. 60-245(c)(3)(A)(iv). Further, movants asserted that the subpoenas did not comply with the dictates of Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d ...


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