Friday, February 03, 2006

Court drastically scales back Kline's fishing expedition

Attorney General Kline sought 90 complete medical records from two clinics which provide abortions (and other health services). Some of the records relate to minors, others are records of adult women.

The clinics argued that Kline's reading of the law was incorrect and that the subpoenas would yield information not necessary to the investigation but of an intensely private nature (including psychological evaluations, sexual histories, birth control practices, etc.).

The Kansas Supreme Court struck down the subpoenas but declined to hold Kline in contempt:
The type of information sought by the State here could hardly be more sensitive, or the potential harm to patient privacy posed by disclosure more substantial. Judge Anderson's order does not do all it can to narrow the information gathered or to safeguard that information from unauthorized disclosure once it is in the district court's hands. Although the criminal inquisition statutes do not speak to the need for such narrowing and safeguards, the constitutional dimensions of this case compel them.



We discern three specific errors:

First, the judge misstated a critical provision of the criminal abortion statute. The two physicians who must agree that an abortion at 22 weeks' gestational age or later is necessary must do so on the basis that the life of the pregnant woman is endangered or on the basis that "continuation of the pregnancy would cause a substantial and irreversible impairment of a major bodily function of the pregnant woman." K.S.A. 65-6703(a). Judge Anderson joined these two bases by the conjunction "and" rather than the disjunctive "or." This misstatement of the law must be corrected lest the attorney general be misled as to the limits of his authority to prosecute.

Second, Judge Anderson also stated that "presumed flaws" in the attorney general's interpretation of the criminal abortion or mandatory child abuse reporting statutes would not prevent production of the files called for in the subpoenas. In essence, this statement adopted senior assistant attorney general Maxwell's position that any error in the attorney general's interpretation was irrelevant. We disagree. To hold otherwise could permit exactly the abuse of prosecutorial power the courts must be vigilant to prevent. To the extent the inquisition rests on the attorney general's ignorance, disregard, or misinterpretation of precedent from the United States Supreme Court, subpoenas pursuant to the inquisition cannot be allowed.



Third, Judge Anderson erred in refusing to allow redaction of patient-identifying information from the files. This information must be redacted by petitioners before the files are turned over to the court. Should patient-identifying information later be required, the district judge may approve appropriate subpoenas for that information at that time.
The Court sent the case back to the hearing judge with a procedure for removing personally identifiable information:

First the clinic's lawyers would remove anything identifiable, then a physician appointed by the court would check for other information that might identify a patient. Then the court would turn over any records which did not simply contain a reasonable medical debate over how the patient's status fits with state law.
The Court was troubled by Kline's defense of his decision to attach sealed records to a document he knew would not be sealed, and was unconvinced by his written arguments:
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). This too is troubling.
Luckily, a different lawyer managed to save his bacon in oral arguments by using the classic "no harm, no foul" legal theory. Based on that argument, they did not hold Kline in contempt, but held that they could have given the facts.

Perhaps President Bush can rely on the rules of basketball to defend his unilateral decision to ignore the law on domestic surveillance.