Kansas high court allows reporter subpoena to stand

The Kansas Supreme Court yesterday ruled that prosecutors may force Dodge City Globe reporter Claire O’Brien to testify about her news gathering activities and materials in a murder trial. 

Without ordering a hearing in the matter, the court in a two-sentence order denied the paper’s request for relief and rejected all potential friend-of-the-court briefs in the case as “moot.”

Kansas Press Association Executive Director Doug Anstaett called the ruling disappointing and said it elucidates the need for a Kansas shield law — legislation in the state was introduced in 2008 but has not advanced past the committee stage.

“In Kansas, the reason [prosecutors issue reporter subpoenas] is because they can get away with it,” Anstaett said. “It was a $25,000 expense to file this request and we got two sentences from the supreme court.”

O’Brien previously fought on First Amendment grounds a subpoena that required her to testify in a grand jury proceeding, known in Kansas as an inquisition. After the high court granted a stay in that matter, she was served with another subpoena to appear at the actual trial and testify about a jailhouse interview she had with the defendant and other confidential information. The court denied her motion to quash the subpoena ordering her testimony at trial.

“We didn’t necessarily believe that the court would rule totally in our favor, but thought if nothing else the Supreme Court would at least require the local district judge to require some proof from the county attorney that [O’Brien had] something material to their case,” Anstaett said.

The lower court ruled that prosecutors could subpoena a reporter to obtain any relevant information — a much lower bar than courts typically use. The U.S. Supreme Court in 1972’s Branzburg v. Hayes set forth a reporter’s privilege test that permitted grand jury subpoenas only when the government could "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."

If she refuses to testify, O’Brien could potentially be held in contempt of court. O’Brien could not immediately be reached for comment, but told the Associated Press in late December, "Going to jail is something I am able to do and willing to do.”