United States: NY AG Subpoena Cut Back On Constitutional Grounds

Last Updated: August 25 2017
Article by Jeremy W. Meisinger

In a rare departure from the typically-deferential court treatment of AG investigations, a New York appeals court allowed in part a motion to quash a document subpoena from the New York Attorney General, citing constitutional concerns, in Matter of Evergreen Assn., Inc. v. Schneiderman, 54 N.Y.S.3d 135 (2017).

The subpoena, issued in 2013, arose from investigations by the NY AG begun in 2010 of "crisis pregnancy centers." Evergreen, according to its filings, provides "nonmedical advice, emotional support, and material assistance" to women facing unplanned pregnancies. The appeals court noted that Evergreen also offers pregnancy testing, ultrasounds and sonograms. As part of offering advice, Evergreen counsels women against seeking abortions.

The NY AG's investigation centers on whether Evergreen violated NY laws prohibiting the unlicensed practice of medicine. The NY AG alleges, for example, that Evergreen's locations are "located in medical buildings and designed like medical clinics," and that Evergreen staff "conducts pregnancy tests and makes diagnoses regarding pregnancy, ectopic pregnancy, and gestational age."

Evergreen argued that the purpose of the investigation was rooted in the NY AG's political objections to the operation of crisis pregnancy centers, and that the subpoena infringed on Evergreen's First Amendment rights. In particular, Evergreen argued that the subpoena had "caused great distress to members of its staff," and, citing requests for employee and volunteer data, "invaded the privacy of the staff and would dissuade others from volunteering for Evergreen." The appeals court held these concerns were sufficient to show that the subpoena infringed Evergreen's First Amendment right of association, requiring the AG to demonstrate that the subpoena was "substantially related to a compelling government interest," and "narrowly tailored" to serve that interest.

The appeals court did not doubt that investigation of the unlicensed practice of medicine was indeed a compelling state interest. But the appeals court pared back several portions of the subpoena as being insufficiently "tailored" to meet that interest; the AG's demand that Evergreen produce information related to "every staff person," for example, was reduced to information related to staff persons who provided medical or medical-like services.

Though it is unusual to see an AG subpoena pared down on constitutional grounds, it is easy to read too much into the decision. First, the appeals court affirmed the overwhelmingly deferential standards applicable to the NY AG's subpoenas in the absence of a constitutional objection. The factual basis for the subpoena, the appeals court noted, need only avoid being "inevitabl[y] or obvious[ly]" flawed. Matter of Hogan v. Cuomo, 888 N.Y.S.2d 665 (2009). The subpoena itself could be quashed only if it was "utterly irrelevant to any proper investigation." Anheuser-Busch, Inc., v. Abrams, 525 N.Y.S.2d 816 (1987). "Utterly irrelevant" and "obviously flawed" are daunting standards for any entity in receipt of a subpoena. Second, most such entities would find it harder to avail themselves of the constitutional arguments posed by Evergreen. A non-profit organization that depends heavily on volunteers has a straightforward argument that its ability to associate freely may be hampered by a subpoena. It would not be impossible for a for-profit corporation to make a First Amendment-based argument (indeed, Exxon has certainly tried), but it would likely be harder. Third, the subpoena was reduced, not quashed, and Evergreen will still be required to produce a large quantity of documents to the AG.

Thus, while Evergreen is an interesting decision, it does not represent a new bulwark against subpoenas, CIDs, and other AG investigations.

To view Foley Hoag's State AG Insights blog click here

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