The Kansas Supreme Court unanimously ruled Tuesday that while a citizen-petitioned grand jury is constitutional, a group investigating a Wichita abortion clinic can’t form a grand jury to go on a “fishing expedition” for patient records.
Abortion rights supporters and opponents both applauded the ruling, which allowed a grand jury to continue investigating George Tiller’s Women’s Health Care Services clinic, but required oversight from a trial judge.
Abortion opponents have used citizen grand juries to launch investigations against clinics in Wichita and Johnson County.
The court’s order provided Sedgwick County District Court detailed instructions for how to review a subpoena for thousands of patient records from Tiller’s clinic.
Troy Newman of Operation Rescue West, one of three abortion opponents who helped collect more than 7,000 signatures to impanel the Wichita grand jury, said he was pleased the court upheld the process.
“Tiller will eventually be brought to justice,” he said. “I believe that if he were truly innocent, he’d be doing everything he could to prove that. But he’s doing what guilty men do — throwing up road blocks and red herrings.”
Lawyers for Tiller and his patients expressed satisfaction with the limits put on a grand jury seeking nearly 2,000 of their medical records.
“The Kansas Supreme Court today put the brakes on runaway grand juries,” said Dan Monnat, a Wichita lawyer representing Tiller.
Kansas is one of only a handful of states that allows residents to petition for a grand jury investigation into criminal matters.
In January, the Tiller grand jury demanded records of every woman at least 22 weeks pregnant who had received or sought an abortion at the clinic for the past five years.
But Sedgwick County Senior District Judge Paul Buchanan did not provide detailed enough findings when he granted the subpoena, the court ruled.
“Judge Buchanan’s rulings from the bench were rather cryptic,” said the opinion written by Justice Lee Johnson of Caldwell.
Johnson’s opinion drew distinctions between federal and Kansas grand juries. A federal prosecutor, the court said, is “a licensed attorney subject to professional and ethical obligations” to make sure a grand jury follows the law. Kansas does not provide for that.
A judge, then, must oversee state grand juries to make sure they don’t overstep their bounds.
“The court should satisfy itself that the grand jury has not engaged in an arbitrary fishing expedition,” the ruling said.
The state Supreme Court, for example, questioned why grand jurors would investigate Tiller’s procedures for granting late-term abortions, when he already faces similar charges in a case brought by the Attorney General’s office. That case awaits a decision by another Sedgwick County district judge, Clark Owens.
“The court even asked, why would you need records of every woman who did not have an abortion?” said Bonnie Scott Jones, a lawyer from the Center for Reproductive Rights in New York, who represents Tiller’s patients.
Lawyers for the clinic have said it would take 5,000 working hours, at a cost of some $250,000, to remove unnecessary information. Buchanan must determine if that provides an “undue burden” for producing the records.
If the judge makes that finding, then he has to take steps to ensure the protection of patient privacy.
Buchanan has to appoint an independent lawyer and doctor to review the records to further remove any information not relevant to the grand jury’s investigation.
The judge must also fashion an order to ensure that patient information going into the grand jury room doesn’t come out. That excludes any records a prosecutor would need to file criminal charges.
The Johnson County grand jury did not find any illegal activities at a clinic run by Planned Parenthood earlier this year.
The Wichita grand jury has been waiting on Tuesday’s ruling to proceed.
Reach Ron Sylvester at 316-268-6514 or [email protected]. All content © 2008 THE WICHITA EAGLE and may not be republished without permission.
By RON SYLVESTER