In Re Special Investigation No. 281

SMITH, Judge. Maryland Const, art. V, § 3(a)(2) provides that the Attorney General shall “[investigate, commence, and prosecute .. . any .. . criminal suit or action or category of such suits or actions ... in any Court of this State, ... on the part of the State ... which . . . the Governor, shall have directed or shall direct to be investigated, commenced and prosecuted or defended.” On December 20, 1978, pursuant to that provision, Acting Governor Blair Lee, III, authorized and directed the Attorney General of Maryland to investigate, among other things, “the administration of medical assistance under the State’s Medicaid Program,” with power “to present to any grand jury which may have jurisdiction over the matter any evidence and testimony that [the Attorney General might] consider necessary and appropriate to carry out this authorization and directive.” The letter specified that if criminal charges were brought the Attorney General was “authorized to prosecute in any courts of this State such violations of the law as [might be] disclosed by the investigation with the full powers and authorities possessed by a State’s Attorney.” On November 21, 1979, Governor Harry Hughes issued a letter to the Attorney General authorizing him pursuant to this constitutional provision to: “act[ ] with full powers, rights and privileges possessed by a State’s Attorney, to investigate and, where appropriate, ¹⁸⁵ prosecute those categories of cases involving, arising out of or relating to: “1. the provision of medical assistance under, or the activities of providers of medical assistance under, the State’s Medicaid Program; “2. the administration of medical assistance under the State’s Medicaid Program; “3. the abuse or neglect of patients of health care facilities receiving payments under the State’s Medicaid Program.” Pursuant to these directives the Attorney General has created the “Medicaid Fraud Control Unit” of his office. This litigation is a part of the seemingly endless legal controversies growing out of the exercise of that authority.

See, e.g., In Re Special Investigation No. 249, 296 Md. 201 , 461 A.2d 1082 (1983); In Re Special Investigation No. 244, 296 Md. 80 , 459 A.2d 1111 (1983); In Re Special Investigation No. 229, 295 Md. 584 , 458 A.2d 80 (1983); In Re Special Investigation No. 236, 295 Md. 573 , 458 A.2d 75 (1983); In Re Special Investigation No. 227, 55 Md.App. 650 , 466 A.2d 48 (1983); In Re Special Investigation No. 228, 54 Md.App. 149 , 458 A.2d 820 , cert. denied, 296 Md. 414 (1983). This case involves seven distinct issues: (1) whether either the contempt issue (where the custodian of the records complied with the subpoena and purged himself of contempt) or the appeal from the denial of the motion to quash the subpoena is moot; (2) whether the issues are moot because of the subsequent indictment of the dentist in question; (3) whether the grand jury subpoena duces tecum issued against the appellant-dentist violated his rights under the Fourth Amendment to the United States Constitution because it was overbroad; (4) whether the dentist’s preincorporation patient records may be produced without violating his privilege against self-incrimination under the Fifth Amendment to the United States Constitution; (5) whether the State’s cross-appeal should be dismissed because no appellate brief was filed on behalf of the State; (6) whether ¹⁸⁶ the Attorney General is empowered to request the extension of the term of a grand jury which is investigating Medicaid fraud; and (7) whether the circuit court was empowered to issue a contempt order after an appeal was filed. We shall dismiss the appeal but give our opinion on the issues raised. Our view is not favorable to appellants.

I Appellants are a dentist and his business entity, a professional association operating a dental practice in Baltimore County. Since July 1, 1981, the dentist has practiced through that professional association. Prior to that date he operated as a sole practitioner. He participates in both the Maryland Medical Assistance Program and the Maryland Dental Plan (Blue Shield).

On May 20 and May 25, 1983, the Baltimore City Grand Jury served the custodian of records of the professional corporation with subpoenas duces tecum at the request of an assistant Attorney General assigned to the Medicaid Fraud Control Unit. The May 20 subpoena called for the production of “all patient records” pertaining to a number of specifically named Medical Assistance patients and a somewhat greater number of Blue Shield patients. The May 25 subpoena sought production of nearly all of the business records of the dental practice for the years 1979-1982 and all daily journal sheets for the period July 1, 1979, to April 30, 1983. The appellants filed a motion to quash the subpoenas.

The individual appellant invoked his Fifth Amendment privilege against self-incrimination. Both appellants asserted the Fourth Amendment prohibition against unreasonable searches and seizures. The parties entered into a stipulation of facts prior to the hearing on the motions to quash. The stipulation provides in pertinent part: ¹⁸⁷ “1. [The individual appellant] is a licensed dentist whose sole place of business is located at . . .

Baltimore County, Maryland. “2. [Appellant] participates in both the Maryland Medical Assistance Program and in the Maryland Dental Plan, i.e., the program of the Maryland Dental Service Corporation and Maryland Blue Shield, Inc. (Blue Shield). “3. Since July 1, 1981 there has been a professional corporation . . . through which [appellant] has operated his dental practice. Prior to July 1, 1981, [appellant] practiced as a sole practitioner. “6. If a patient who was treated by [appellant] prior to July 1, 1981, came in for treatment after July 1, 1981, no new patient chart was created; rather, new entries were made on the existing records. ****** “8.

On the patient charts, [appellant] writes in the services rendered. On rare occasions, some note may be added by a dental assistant who works at his direction. When payments are received, credits are noted on the charts and ledgers by the receptionist. “9. Patient records, i.e., charts and ledger cards, were maintained regularly at . . . [appellants’ Baltimore County office] in alphabetical order without regard to the type of payment plan the patient uses and without regard to the July 1, 1981, [incorporation] date .... * * * * * * “16. [Appellant] mails invoices for payment under the Blue Shield Plan to the Blue Shield offices ... in Baltimore County.

In return, Blue Shield mails payments to [appellant’s] office in Baltimore County.” A list of all patients mentioned in the May 20 subpoena was attached to the stipulation. The list divides the patients into the following categories: those who were seen exclusively before July 1, 1981; those who were seen exclusively after July 1,1981; and those who were seen both before and after ¹⁸⁸ July 1, 1981, the date when the professional association began operation of the dental practice. The trial judge said on the motion to quash: “As to the Medicaid patient records listed in item 1 of the May 20,1983 subpoena, the effect of paragraphs 6 and 9 of the stipulation of facts is, that the pre-incorporation patient records were fully available for use by the P.A. and were commingled with the post P.A. patient records without distinction in the P.A. files. “For all practical purposes they became the property of the P.A. and the individual dentist cannot claim his personaT Fifth Amendment privilege as to them. “The pre P.A. records of Blue Shield patients are now P.A. property for the same reasons previously stated as to the pre P.A. Medicaid patient records. Although the required records exception does not apply to Blue Shield records since no Government regulation as to record keeping is involved, the doctor cannot invoke his Fifth Amendment privilege as to those records.” The motion to quash was heard on July 13, 1983.

In declining to quash on grounds of relevancy the trial judge relied upon our refusal, in Special Investigation No. 249, 296 Md. 201 , 461 A.2d 1082 , decided on June 27, 1983, to adopt the so-called “Schofield doctrine” enunciated in In Re Grand Jury Proceedings, 486 F.2d 85 (3d Cir.1973). The appellants sought a stay pending appeal when the trial court issued its order requiring production of the documents. The stay was denied. Production was ordered in thirty days.

An appeal was filed. The State filed a cross appeal. Thereafter the Court of Special Appeals denied the motion to stay. Upon expiration of the thirty day period for production of the documents the State sought to hold appellant’s counsel, the then custodian, in constructive contempt.

In due season the custodian was held in contempt and ordered incarcerated unless the records were produced on or before August 31. An appeal was entered to that order. ¹⁸⁹ The appellants then sought a writ of certiorari from us prior to adjudication of the controversy by the Court of Special Appeals. At the same time they sought a stay of the required production. We issued the writ of certiorari but denied the motion to stay.

The patient records were produced on September 2, 1983, under pain of incarceration. On September 8, at the request of the Attorney General, an order was entered extending the term of the grand jury in order that the investigation of the dentist and his professional association could continue. Its term had been scheduled to expire on September 9. Subsequently a sixty-eight count indictment was returned against the dentist.

The State then moved to dismiss this proceeding on the ground of mootness. II We are first concerned with whether either the contempt issue (where the custodian of the records complied with the subpoena and purged himself of the contempt) or the appeal from the denial of the motion to quash the subpoena is moot. The dentist claims that the appeal is not moot because, in deciding this case, we can still fashion an effective remedy even though the custodian of records complied with the subpoena in order to purge himself of contempt. He says that if we determine that his constitutional rights have been violated we can order that the records be returned to him and that their use be prohibited at trial.

The State basically argues that the appeal is moot because no controversy continues to exist between the parties: the custodian not only turned over the records but the grand jury has returned an indictment against the dentist. We have spoken several times as to the rules for determining whether a particular case is moot. For example, in Maryland Tobacco Grow. v. Maryland Tob. Auth., 267 Md. 20 , 296 A.2d 578 (1972), we stated: “This Court has consistently held that when the chronology of a case makes it apparent that nothing we could do ¹⁹⁰ could undo or remedy that which has already occurred, except under the most extraordinary circumstances requiring a decision in the public interest, the case must be dismissed as moot.

We do not sit to give opinions on abstract propositions .. . . ” 267 Md. at 25-26 , 296 A.2d at 580 . Accord State v. Ficker, 266 Md. 500 , 295 A.2d 231 (1972); Lloyd v. Supervisors of Elections, 206 Md. 36 , 111 A.2d 379 (1954). In Attorney General v. Anne Arundel Co. School Bus, 286 Md. 324 , 407 A.2d 749 (1979), Judge Davidson stated for the Court the standard for determining whether a case is moot: “A question is moot if, at the time- it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” 286 Md. at 327 , 407 A.2d at 752 . The Court further noted, “Of course, a court may decide a moot question where there is an imperative and manifest urgency to establish a rule of future conduct in matters of important public concern, which may frequently recur, and which, because of inherent time constraints, may not be able to be afforded complete appellate review.” 286 Md. at 328 , 407 A.2d at 752 .

In applying these principles to the facts of this case, it appears that the contempt issue is moot because the custodian of the records complied with the order to produce and purged himself of civil contempt. There is, in this instance, no effective remedy that a court could devise that would undo his compliance with the order. It appears, however, that there are important issues of public interest raised which merit an expression of our views for the guidance of courts and litigants in the future. Indeed, our comments will have a distinct bearing on issues to be decided at trial.

Hence, we shall express ourselves as we did, for example, in Special Investigation No. 249, 296 Md. 201 , 461 A.2d 1082 , and Special Investigation No. 244, 296 Md. 80 , 459 A.2d 1111 . ¹⁹¹ Ill The State contends that the appeal is moot by virtue of the subsequent indictment of the dentist. We have already determined mootness on other grounds. Hence, we have no need to address this point. IV The dentist argues that, despite the presumption of regularity which attaches to grand jury subpoenas, the subpoena issued in this case violated the Fourth Amendment requirements of relevancy to the investigation and reasonableness.

He points out that although the grand jury was authorized to investigate Medicaid fraud, the subpoena sought production of Blue Shield patient records. Blue Shield insurance is distinct from the Medical Assistance Program and is not subject to the then pending grand jury probe in Baltimore City. He claims that the subpoena directed to the Blue Shield records is “an illicit short-cut designed to grab records for eventual presentation elsewhere, i.e., in Baltimore County.” Further, the dentist claims he should not be required to produce Blue Shield patient records because the Grand Jury of Baltimore City is empowered only to indict for crimes that have occurred in the City. No nexus exists between the Blue Shield records and Baltimore City: the dentist’s sole place of business is in Baltimore County; the patient records were kept at that office; and requests for Blue Shield payments were made to the Blue Shield office in Baltimore County.

Therefore, it is argued, the grand jury subpoena seeking production of the Blue Shield patient records constitutes a fishing expedition and as such violates the Fourth Amendment. In our system of jurisprudence grand juries have been accorded broad powers to investigate whether a crime has been committed. See United States v. Dionisio, 410 U.S. 1, 15 , 93 S.Ct. 764, 772 , 35 L.Ed.2d 67 (1973); Blair v. United States, 250 U.S. 273, 282 , 39 S.Ct. 468, 471 , 63 L.Ed. 979 (1919); United States v. Reno, 522 F.2d 572, 575 (10th ¹⁹² Cir.1975); Special Investigation No. 244, 296 Md. at 90 , 459 A.2d at 1116 . As the Supreme Court noted in Dionisio : “A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it.

The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge. Branzburg v. Hayes, 408 U.S. [665], at 701 [ 92 S.Ct. 2646, at 2666 , 33 L.Ed.2d 626 ]. No grand jury witness is ‘entitled to set limits to the investigation that the grand jury may conduct.’ Blair v. United States, 250 U.S., at 282 [ 39 S.Ct. at 471 ]. And a sufficient basis for an indictment may only emerge at the end of the investigation when all the evidence has been received.” 410 U.S. at 15-16 , 93 S.Ct. at 772 .

Accord Coblentz v. State, 164 Md. 558, 566 , 166 A. 45, 49 (1933). The Fourth Amendment prohibition against unreasonable searches and seizures, however, restricts this investigatory authority. See, e.g., Hale v. Henkel, 201 U.S. 43, 76 , 26 S.Ct. 370, 379 , 50 L.Ed. 652 (1906); Special Investigation No. 249, 296 Md. at 208-09 , 461 A.2d at 1086 . A subpoena duces tecum issued by a grand jury to a witness must be reasonable and relevant to the investigation.

See Okla. Press Pub. Co. v. Walling, 327 U.S. 186, 208 , 66 S.Ct. 494, 505 , 90 L.Ed. 614 (1946); United States v. MacKey, 647 F.2d 898, 901 (9th Cir.1981); Reno, 522 F.2d at 575 ; In Re Horowitz, 482 F.2d 72, 79 (2d Cir.), cert. denied, 414 U.S. 867 , 94 S.Ct. 64 , 38 L.Ed.2d 86 (1973). As was noted in People v. Mileris, 103 Ill.App.3d 589, 591 , 59 Ill.Dec. 307, 309 , 431 N.E.2d 1064, 1066 (1981), “The permissible breadth of a subpoena duces tecum is to be measured by the scope of the problem under investigation and a subpoena which is not unreasonably broad when measured by that standard will be sustained.” In determining whether a particular subpoena is reasonable, courts consider three requirements: “They are: (1) that the subpoena command only the production of materials relevant to the investigation; (2) that the subpoena specify the materials to be produced with reasonable particularity; and (3) that the subpoena ¹⁹³ command production of materials covering only a reasonable period of time.” Reno, 522 F.2d at 575 .

Accord In Re Corrado Bros., Inc., 367 F.Supp. 1126, 1129 (D.Del.1973). We have decided several cases that involve the permissible scope of a subpoena duces tecum issued in connection with the Attorney General’s Medicaid fraud investigation. As earlier indicated, in Special Investigation No. 249, 296 Md. at 208 , 461 A.2d at 1086 , we rejected the Third Circuit’s Schofield or “minimum showing” test applicable to grand jury subpoenas. In Special Investigation No. 244, 296 Md. at 94 , 459 A.2d at 1118 , we held that the Baltimore City Grand Jury was empowered to issue a subpoena duces tecum to a witness located outside the City limits because the documents sought might aid “its investigation into possible violations of the criminal law of this State which may have occurred within Baltimore City.” These cases indicate that we recognize and intend to uphold the broad scope of authority granted to the grand jury to investigate violations of criminal law.

As long as the documents sought in a grand jury subpoena duces tecum are relevant to the investigation, are noted with reasonable particularity, and cover only a reasonable period of time, a court will not consider the subpoena to be overbroad on the grounds that it is but a fishing expedition. If these requirements are satisfied, then, absent a showing that the subpoena impermissibly infringed upon the constitutional rights of the witness, the subpoena will be upheld. In applying this test to the subpoena duces tecum at issue in this case it is clear that the Fourth Amendment