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Kansas Supreme Court
Selected Opinion Summary

Docket No. 99,951: George R. Tiller, M.D. and Women’s Health Care Services Inc. v. Hon. Michael Corrigan, Presiding Judge, and Hon. Paul Buchanan, Assigned Senior Judge, Respondents; Docket No. 99,972: Jane Doe, Ann Roe, Sara Coe and Paula Poe on Behalf of Themselves and Similarly Situated Patients v. Hon. Michael Corrigan and Hon. Paul Buchanan; and Docket No. 100,042: Stephen N. Six, Kansas Attorney General, v. Hon. Michael Corrigan and Hon. Paul Buchanan
May 6, 2008

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.


RE: Appeal No. 99,951: George R. Tiller, M.D. and Women’s Health Care Services Inc. v. Hon. Michael Corrigan, Presiding Judge, and Hon. Paul Buchanan, Assigned Senior Judge, Respondents; Docket No. 99,972: Jane Doe, Ann Roe, Sara Coe and Paula Poe on Behalf of Themselves and Similarly Situated Patients v. Hon. Michael Corrigan and Hon. Paul Buchanan; and Docket No. 100,042: Stephen N. Six, Kansas Attorney General, v. Hon. Michael Corrigan and Hon. Paul Buchanan

The Supreme Court today upheld the constitutionality of the Kansas statute that provides for citizen-initiated grand juries, but sent three cases seeking to quash subpoenas issued by a grand jury investigating a Wichita abortion clinic back to the Sedgwick County District Court.

The Court, in a unanimous decision authored by Justice Lee A. Johnson, ruled that the statute does not violate the separation of powers doctrine.  Kansas is one of a few states that authorize citizens to petition for a grand jury investigation.  However, the Court said the grand jury's powers 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."

The Court's decision came in three consolidated cases challenging subpoenas issued during the grand jury's investigation of alleged illegal abortions and other violations of the law by George R. Tiller, M.D., and others performing professional services at Wichita's Women's Health Care Services, Inc.  The cases were brought by Tiller, unnamed patients whose records are in question, and Attorney General Stephen N. Six against two Sedgwick County judges who issued the subpoenas.

Today's decision was expedited to accommodate statutory deadlines for the grand jury to complete its work.  It was filed less than a month after oral arguments were conducted on April 8, an unusually fast track for a decision by the state's highest court.

The opinion instructed the district judges first to determine whether the scope of the subpoenas is too broad and then whether the patient records would be too burdensome to produce.  The clinics contend that the subpoenas cover more than 2,000 patient records and that it would take months to redact privileged medical information.

The district court also must satisfy itself that the grand jury is not engaging in harassment.  If so, the district court should quash the subpoenas, the opinion states.  If not, the opinion said the final issue for the district court is the balance of the patients' constitutional privacy interests against the state's compelling interest in prosecuting crimes.

The opinion directed "that, if and when the district court settles on the scope of records for which there is a compelling State interest that justifies intrusions upon the patients' constitutional privacy rights, the court must permit WHCS to redact all patient identifying information from the records to be produced."

The court stated that patient-identifying information may include the number assigned each patient by the clinic.  In addition, only copies, rather than original records, may be sought.

The Supreme Court further directed that before any records are shown to the grand jury, they must be reviewed by an independent attorney and independent physician to further redact all irrelevant information.

The Court also directed the district court to enter an order prohibiting the distribution or dissemination of any information from the patient records outside the grand jury proceeding.

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