Comprehensive Health of Pp v. Kline

197 P.3d 370

287 Kan. 372

COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI, INC., Petitioner, v. Phill KLINE, Johnson County District Attorney, Respondent, and Stephen N. Six, Kansas Attorney General, Intervenor.

No. 98,747.

Supreme Court of Kansas.

December 5, 2008.

Robert V. Eye, of Irigonegaray & Associates, of Topeka, argued the cause, and Pedro L. Irigonegaray and Elizabeth R. Herbert, of the same firm, and Douglas N. Ghertner and Robert A. Stopperan, of Slagle, Bernard & Gorman, of Kansas City, Missouri, and Roger K. Evans, of Planned Parenthood Federation of America, of New York, New York, and Helene T. Krasnoff, of Planned Parenthood Federation of America, Washington, D.C., were with him on the briefs for petitioner.

Caleb Stegall, of The Stegall Law Firm, of Perry, and Phill Kline, respondent, argued the cause, and Edward D. Greim and Todd P. Graves, of Graves Bartle & Marcus, LLC, Kansas City, Missouri, and Carly F. Gammill, of American Center for Law & Justice, Washington, D.C., and Edward L. White, III, of American Center for Law & Justice, Ann Arbor, Michigan, were with him on the briefs for respondent.

Michael C. Leitch, deputy attorney general, argued the cause and was on the brief for intervenor Attorney General Stephen N. Six.

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

This is an original action in mandamus filed by petitioner Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. (CHPP), to challenge respondent Phill Kline's handling of patient records obtained from CHPP pursuant to an inquisition subpoena issued when Kline was Attorney General. We decide whether CHPP has met its burden to obtain relief in mandamus and whether Kline's behavior merits sanction as civil contempt or otherwise.

Factual and Procedural Background

On February 3, 2006, this court issued its opinion in Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006), which arose out of Kline's issuance of inquisition subpoenas duces tecum under K.S.A. 22-3101(1). Our decision identified three constitutional privacy interests implicated by subpoenas for patient records directed to Women's Health Care Services of Wichita, P.A. (WHCS), and CHPP, identified in the opinion as Alpha Medical Clinic and Beta Medical Clinic. Both clinics perform abortions. We balanced the patients' individual privacy interests against the societal necessity and compelling State interest in pursuing criminal investigations, outlining procedures to be followed for redaction of the records before the district court allowed them to be turned over to the Attorney General. See Alpha, 280 Kan. at 924-25, 128 P.3d 364. We did not rule upon exactly which data was to be redacted or how the records were to be handled once they were placed in Kline's hands. See Alpha, 280 Kan. at 924-25, 128 P.3d 364. During oral argument in Alpha, Chief Deputy Attorney General Eric Rucker, who argued the case on behalf of then Attorney General Kline, asserted that Kline was not seeking patient names.

In Alpha, the clinics urged us to hold Kline in contempt of court, in part because he had attached to his brief portions of a district court transcript and order, had discussed the inquisition at a press conference, and had permitted distribution of the transcript after the conference concluded, all allegedly in violation of court seal orders.

In response to the clinics' contempt argument, we first observed that those allegations over which this court had jurisdiction concerned indirect criminal contempt. Indirect contempt deals with conduct occurring outside the presence of a judge. Alpha, 280 Kan. at 926, 128 P.3d 364. Proceedings in criminal contempt attempt to "`"`preserve the power and vindicate the dignity of the courts and to punish for disobedience'"' of court orders; criminal contempt tends to obstruct the administration of justice." Alpha, 280 Kan. at 927, 128 P.3d 364 (quoting State v. Davis, 266 Kan. 638, 645, 972 P.2d 1099 [1999]). We continued:

"In his initial response to this court's Order to Show Cause, the attorney general contended that the documents attached to his brief were `but a very small fraction of the entire record before the lower court in the inquisition; we attached only what we believed necessary to support our arguments in this segment of the proceedings.' As for the news conference, Kline asserted that he `stressed the privacy protections put in place by the lower court and the law to prevent public disclosure of the medical records sought.... I did not refer to the transcript of the lower court's hearing, nor did I provide it at the news conference. Later that day, my communications director, after our brief had been filed, provided the transcript electronically to those who requested a copy.' He argued that `it was seemingly inconsistent to keep these pleadings under seal while at the same time suggesting that oral argument was likely.' Kline also argued that the press conference was `necessitated by the false impression left by the public filing of Petitioners' brief and [Petitioners'] representation of the record.'

"Kline's initial responses were troubling. He admitted that he attached sealed court records to a brief he knew would be unsealed; that he did so knowingly because, in his sole estimation, he believed it to be necessary to further his arguments; that he held a press conference on this criminal matter merely because he determined that petitioners had painted his previous actions in an unflattering light; and that he later permitted his staff to provide electronic copies of the sealed transcript to anyone who requested them. In essence, Kline has told this court that he did what he did simply because he believed that he knew best how he should behave, regardless of what this court had ordered, and that his priorities should trump whatever priorities this court had set. Furthermore, although there is conflict between the parties on exactly what was said in the press conference, i.e., whether the actual content of the sealed documents was discussed, Kline's stated reason for holding the conference — to combat what he saw as unflattering earlier press coverage — does not appear to be among the permissible reasons for an attorney in his position to engage in extrajudicial statements under Kansas Rule of Professional Conduct 3.6 (2005 Kan. Ct. R. Annot. 473) [now KRPC 3.8 (2007 Kan. Ct. R. Annot. 520) ]. This too is troubling.

"At oral argument before this court, Kline's [personal] lawyer, a former four-term attorney general, wisely altered the tone of Kline's response. He characterized whatever mistakes Kline may have made as honest ones and said his client was acting in good faith. He also, as Kline eventually had done for himself in his written response, made a classic `no harm, no foul' argument: Any disclosure of sealed material did nothing to impair the orderly nature of this proceeding or the soundness of its eventual result; the attorney general and his staff did not release information harmful to personal privacy, prejudicial to the administration of justice, or detrimental to this court's performance of its duties.

"We conclude that, despite the attorney general's initial defiant tone, he should not be held in contempt at this time. No prejudice has resulted from his conduct, a distinguishing feature of the cases cited to us by petitioners....

"This is ... the first [case] in memory when this court has required public briefs and oral argument on a sealed record. Although we believe this directive was more challenging than confusing, and although the actions complained of here might well be characterized as criminal contempt in a different case, we are inclined to grant the attorney general the benefit of the doubt here. This is an unusually high-profile case attracting keen public interest throughout the state. We caution all parties to resist any impulse to further publicize their respective legal positions, which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding." 280 Kan. at 928-30, 128 P.3d 364.

On May 23, 2006, approximately three and one-half months after this court released Alpha, District Judge Richard Anderson of Shawnee County, the judge overseeing the inquisition, issued what the record before us reveals as his only written post-Alpha protective order concerning the patient records from the clinics. The order set forth the procedure to be followed to effect the safeguards outlined in Alpha, appointing a Topeka lawyer to assist the judge and act as

"special counsel for adult patients and as guardian ad litem for minor patients for the purpose of making recommendations to the Court to protect the confidentiality of the identity of any patients ... and to protect against release of sensitive, confidential, and privileged information which is not relevant to the medical procedure and/or the criminal investigation. Special Counsel shall supervise the reproduction and release of copies of all medical records. In addition, Special Counsel shall make duplicate copies of all medical records in the form released to the Attorney General and return complete copies of such copied medical records to the medical facilities."

Judge Anderson would later testify that, aside from this order and earlier nondisclosure provisions contained in the subpoenas directed to the clinics, he relied on a series of conversations with Kline and his subordinates, what he called an oral "working agreement," to control dissemination of information generated in the inquisition, including the redacted patient records. Judge Anderson also would testify that, although he thought the guidelines of Alpha had been adhered to, he believed a parent of a patient described in the redacted records would be able to identify his or her daughter. Judge Anderson trusted Kline to behave ethically and professionally.

"My expectation,...