Open Courts Compendium
Mike Kautsch, professor
School of Law
University of Kansas
Lawrence, KS 66045
Phone: (785) 864-5377
Fax: (785) 864-5054
Last Updated February 2018Compare
I. Introduction: Access rights in the jurisdiction
A. The roots of access rights
In 1981, the Kansas Supreme Court adopted a presumption that court records and proceedings were open. Ever since, the court’s decision, in Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), has been central to media claims for access to the state’s courts.
Fossey arose when a juvenile was charged with murdering his stepbrother. He was held for trial as an adult. At one point early in the proceedings, the judge, Leighton A. Fossey, scheduled a hearing on whether the defendant had involuntarily made self-incriminating statements to the police. Judge Fossey indicated in open court that he would hold a hearing on whether to suppress the defendant’s statements. He also indicated that he would close the suppression hearing to the press and the public. In response, three reporters in the courtroom stood, and one read a statement that had been prepared by her employer, the Kansas City Times. The statement called for a hearing on whether or not the judge should exclude the press and the public.
Nevertheless, Judge Fossey expressed concern about “considerable publicity concerning the case” that could prejudice the jury against the defendant. Fossey, 630 P.2d at 1178. He closed the courtroom and held the suppression hearing. Afterward, he ruled that the defendant’s self-incriminating statements would be admissible at the trial. He also decided to permit reporters covering the trial to read the defendant’s statements, although only after they were introduced into evidence.
In response, the Kansas City Star Company, publisher of the Kansas City Times, filed a motion to intervene. The Star sought to reverse Judge Fossey’s closure order and obtain a transcript of the suppression hearing. Although the judge declined to vacate his order, he agreed to the eventual release of a copy of the transcript of the suppression hearing. At the end of the trial, the defendant was found guilty. Meanwhile, the Star appealed from Judge Fossey’s closure of the suppression hearing by petitioning the Kansas Supreme Court for a writ of mandamus.
In Fossey, the Kansas Supreme Court rejected the newspaper’s mandamus petition, upholding the trial judge’s closure of the suppression hearing. The state supreme court viewed the suppression hearing as a pre-trial proceeding, even though the jury already had been impaneled. As a result, the supreme court declined to be guided by the holding in Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980), that criminal trials are presumed to be open. Instead, the supreme court relied on Gannett Co. v. DePasquale, 443 U.S. 368 (1979), which found no constitutional right for the public to attend pre-trial proceedings.
Nonetheless, in Fossey, the Kansas Supreme Court held that, in the future, a presumption of openness would apply to criminal court proceedings and records. The state supreme court established the presumption with reference to standards that the American Bar Association had approved in 1978. The standards generally were in accord with Richmond Newspapers. The policy underlying the standards “is a strong presumption in favor of open judicial proceedings and free access to records in a criminal case.” Fossey, 630 P.2d at 1182.
Under Fossey, closure of court proceedings is allowed “‘only if (i) the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and (ii) the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”’ Fossey, 630 P.2d at 1182 (quoting Fair Trial and Free Press: Standard 8-3.2 of the ABA’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
The Kansas Supreme Court said:
There is almost universal agreement among the courts and writers who have considered the issue that access to court proceedings should be limited only in exceptional circumstances. It has been said that the reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, . . . is to enhance the public trust and confidence in the judicial process and to insulate the process against attempts to use the courts as tools for persecution.
Fossey, 630 P.2d at 1181.
The public interest in access to courts, according to the supreme court, “‘is at least as strong as the first amendment policy against prior restraints.”’ Fossey, 630 P.2d at 1183 (quoting the ABA Standards).
Before the Kansas Supreme Court embraced a presumption of openness in Fossey, it acknowledged the common law right of access to records, although the right was qualified. In Stephens v. Van Arsdale, 608 P.2d 972 (Kan. 1980), the state supreme court said that a judge had discretion to deny access to court records if they are to be used “‘to gratify private spite or promote public scandal’ through the publication of the details of a divorce case or for the publication of libelous statements for press consumption, or as sources of business information that might harm a litigant’s competitive standing.” Van Arsdale, 608 P.2d at 982 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)).
The U.S. Supreme Court has observed that, in many jurisdictions, the common law right of access to court records “has been recognized or expanded by statute.” Nixon., 435 U.S. at 598 n.7. To the extent that the Kansas Legislature has codified common law access, it has done so principally through the Kansas Open Records Act (KORA). Kan. Stat. Ann. (K.S.A.) 45-215 et seq. In KORA, the Legislature declared that openness of public agencies’ records is presumed. K.S.A. 45-216. The presumption of openness controls unless a requested record falls within an exemption specified in KORA. In general, if a record is specifically exempt, public agencies “shall not be required to disclose” it. K.S.A. 45-221(a).
The Kansas Supreme Court exercised authority over records in the state’s courts by issuing an order titled Administration of the Kansas Open Records Act. See Kan. Order No. 156, http://www.kscourts.org/Kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf. The state supreme court also prescribed a procedure for requesting court records. See Request Court Records, http://www.kscourts.org/rules-procedures-forms/open-records-procedures/default.asp. The supreme court’s statement of procedure includes notice that, by statute, some kinds of records are not subject to disclosure. The statement also notes that records may be closed by rule of the supreme court. KORA acknowledges the supreme court’s authority to close records in K.S.A. 45-221(a)(1)). The supreme court gives notice that open court records include “case files and transcripts” and “[f]inal civil and criminal judgments.” Also noted is the fact that some records are not accessible “pursuant to judicial order or caselaw” and that KORA “recognizes that some records contain information that is private in nature.”
Records that are private include records of judges themselves, as opposed to records associated with court proceedings. KORA exempts “any municipal judge, judge of the district court, judge of the court of appeals or justice of the supreme court” from the requirement that public agencies make their records available. K.S.A. 45-217(f)(2)(B). The exemption, for example, applies to long-distance telephone records of judges, even if the records are on file with a public agency. See Op. Kan. Att’y Gen. No. 96-77 (Sept. 12, 1996). Judges, however, are required to make an annual public disclosure of certain personal financial matters. See Rules Related to Judicial Conduct / Kansas Canons of Judicial Conduct / Canon 3, Rule 3.15, Reporting Requirements, http://www.kscourts.org/rules/Judicial_Conduct/Canon%203.pdf. In (A)(1), the rule requires disclosure of “compensation received for extrajudicial activities as permitted . . . and compensation received by the judge’s spouse or domestic partner.”Compare
B. Overcoming a presumption of openness
The presumption that courts are open in Kansas can be overcome only if the trial judge “‘affirmatively concludes’” that “‘the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial,’” and that “‘the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.”’ Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182–83 (Kan. 1981) (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).Compare
C. Procedural prerequisites to closure
Before restricting access to proceedings, a trial judge in Kansas must conduct a hearing and “make findings and state for the record the evidence upon which the court relied and the factors which the court considered in arriving at its decision.” Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1184 (Kan. 1981).
The Kansas Supreme Court said that requiring the trial judge to state the findings and basis for them “will protect both the right of the defendant to a fair trial and the right of the public and news media to have access to court proceedings.” Fossey, 630 P.2d at 1184. American Bar Association standards that the state supreme court adopted included comment providing that
“any motion to close a pretrial proceeding or seal court records be made with the consent of the defendant. The motion, however, cannot be granted unless the court affirmatively concludes that the requirements of the clear and present danger and least restrictive alternative tests have been met. The burden of proof is on the party making the motion.”
Fossey, at 1183 (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
Since Fossey, the Kansas Supreme Court has emphasized that, only after making “specific findings” may a judge interfere with the media’s opportunity to report on court proceedings. State v. Alston, 887 P.2d 681, 692 (Kan. 1994).Compare
II. Procedure for asserting right of access to proceedings and records
A. Media standing to challenge closure
In Kansas City Star Co. v. Fossey, 630 P.2d 1176 (1981), when the Kansas Supreme Court adopted a presumption that courts are open, the media’s standing to intervene and object to a trial judge’s closure order was not disputed. In Fossey, the media had filed a motion to intervene, asking the judge to vacate his order to close a suppression hearing and also requesting a copy of the transcript of the proceeding. After a hearing on the motion, the judge declined to vacate his closure order but granted the media’s request for a transcript of the closed proceeding. The media then petitioned the state supreme court for mandamus, seeking a declaration that the judge’s closure of proceedings had violated the First Amendment. Although the supreme court denied the newspaper’s petition for mandamus, the supreme court ruled that the presumption of openness that would apply in future cases.
In Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), the Kansas Supreme Court reviewed Fossey and affirmed the media’s standing to intervene and challenge a restriction on access to court proceedings and records. In Owens, the media had challenged a judge’s order that sealed records in five high-profile criminal cases, which were primarily related to two quadruple homicides. The state supreme court said:
We believe an integral part of the rule announced in Fossey . . . is the need for a trial court, when considering the sealing of a record or the closure of a proceeding, to consider also the societal interest the public has in open criminal proceedings and records. . . . The news media, as a member of the public, should be permitted to intervene in a criminal case for the limited purpose of challenging a pretrial request, or order, to seal a record or close a proceeding in that case, even without an express statutory provision allowing such intervention.
Owens, 27 P.3d at 883.
The supreme court listed several benefits of allowing intervention by the media in a criminal case. As the supreme court said:
Allowing the news media to intervene in a criminal case…may provide a trial court with the benefit of argument on the question of closure by an advocate of First Amendment and common-law interests. Such an argument would not necessarily be made by the State or the defense and might otherwise go entirely unnoticed. The news media may identify, or at least be the strongest proponent of an argument that there are… “reasonable alternative means” to closure that would avoid the prejudicial effect on the defense or prosecution of the dissemination of information contained in the record or revealed during a proceeding. Other benefits to be derived from permitting the news media to intervene include: (1) allowing the court that is most familiar with events that may be unfolding rapidly in the case and in the community in which the case is pending to make a fully informed closure decision in the first instance, (2) less disruption in the processing of the criminal case because an appellate court would not be called upon prematurely to resolve a challenge by the news media while the criminal case is stayed pending the appellate court’s decision, (3) an increase in judicial economy, and (4) a more efficient use of judicial resources.
Owens, 27 P.3d at 883.Compare
B. Procedure for requesting access in criminal cases
The Kansas Judicial Branch’s website includes information about gaining access to state district and appellate courts, and a central resource is the Kansas Office of Judicial Administration. The judicial administrator’s responsibilities include providing public information about the courts. See You and the Courts of Kansas, at: http://www.kscourts.org/kansas-courts/general-information/you-and-the-courts/default.asp.
News reporters are accustomed to routinely entering Kansas courthouses and attending court proceedings, and they typically submit requests to court clerks for records. However, the routine can be broken if reporters are inside a courtroom and a judge orders them out. In that event, reporters must be prepared to raise an objection. For example, a newspaper reporter’s objection to closure of a courtroom led to the key Kansas precedent, Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), on access to courts. The reporter, who worked for the Kansas City Times, heard the trial judge indicate in open court that he would exclude the public and the media from a hearing on whether to suppress certain evidence. Along with two other reporters, the Times reporter stood and identified herself. She then read a statement objecting to closure of the hearing. The Times had prepared and given her the statement for use on just such an occasion. Reading the statement, the reporter requested that the judge hold a hearing on whether to close the courtroom and summarized legal standards for closing a criminal proceeding. The judge rejected the request, closed the courtroom and conducted the suppression hearing.
The next day, the Kansas City Star Company, which owned the Times, used legal process to request access. The newspaper moved to intervene and vacate the closure order. The judge declined to vacate the order. Soon thereafter, in response to the Star Company’s filing of an original proceeding in mandamus, the Kansas Supreme Court ruled that openness of Kansas courts henceforth would be presumed. Fossey, 630 P.2d at 1181–84. Filing a motion to intervene long has been an accepted method in Kansas of challenging a trial judge’s closure of proceedings and seeking access.
News reporters in Kansas, like in other states, have learned to be alert if they are present when a judge considers a closure order. Reporters generally have been advised to be prepared to stand, respectfully request to be heard, and voice an objection. Following is a statement of objection that illustrates the kind a Kansas reporter may make:
I am (name), a reporter for (name of news organization). On behalf of both myself and my organization, I respectfully object to closure of this proceeding to the public and the media, and I request an opportunity to be heard through counsel before any closure is ordered.
I understand that, under the First Amendment to the United States Constitution (and, if in state court, the state Constitution), the public and the media rightfully may attend court proceedings. At the very least, the law requires that a hearing be held before closure may be ordered. I respectfully request an opportunity to arrange for counsel to be present at such a hearing.Compare
C. Procedure for requesting access in civil matters
Access to civil proceedings generally is unrestricted, and requests for records may be submitted to clerks of court. The Kansas Office of Judicial Administration can aid in gaining access. See You and the Courts of Kansas, at: http://www.kscourts.org/kansas-courts/general-information/you-and-the-courts/default.asp
In response to a denial of access to proceedings or records, however, the media may file a motion to intervene. Kansas Rules of Civil Procedure, in K.S.A. 60-224, includes a provision that, on “timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter substantially impair or impede the movant’s ability to protect its interest.”Compare
D. Obtaining review of initial court decisions
In Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), the Kansas Supreme Court recounted the procedure for seeking review of a trial judge’s closure of court proceedings. After the trial judge denied access to a suppression hearing, the media’s attorneys filed a motion to intervene. They argued that the judge should vacate his closure order. The judge then ordered that a complete transcript of the suppression hearing be made available to the media, but declined to reverse his closure order. Fossey, 630 P.2d at 1184.
The transcript the judge released was of proceedings that had occurred April 27–28, 1981. On May 1, 1981, the day the trial ended, the media petitioned the state supreme court for mandamus, challenging the closure order. The state supreme court directed the trial judge to respond to the petition, and the state attorney general appeared on his behalf. The attorney general filed a motion to dismiss the petition for mandamus. The attorney general’s arguments included an assertion that the matter was moot, because the judge had released the transcript of the closed proceedings. Nevertheless, the supreme court decided that the matter required its attention, explaining
that the public interest justifies the court in considering the case on its merits. On occasions, this court, when confronted with significant issues of statewide concern, has broadened the availability of mandamus in order to expeditiously resolve such issues.
Fossey, 630 P.2d at 1179.
In Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), the Kansas Supreme Court also reviewed the procedure by which the media formally may object to a trial judge’s restriction on court access. Owens arose when a judge denied a motion by the media to intervene and object to his sealing of certain criminal records. The media then filed a petition with the supreme court seeking a writ of mandamus and challenging the judge’s denial of the motion to intervene.
The Kansas Supreme Court indicated that media intervention was proper even in the absence of statutory authority to do so. The state supreme court said, “The news media, as a member of the public, should be permitted to intervene in a criminal case for the limited purpose of challenging a pretrial request, or order, to seal a record or close a proceeding in that case, even without an express statutory provision allowing such intervention.” Owens, 27 P.3d 881, 883.
In K.S.A. 60-801, mandamus is defined as “a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
In Owens, the Kansas Supreme Court approvingly noted that the media’s mandamus petition included the motion to intervene and certified transcripts of the trial court proceedings related to the motion. The state supreme court granted the media’s petition and held “that the news media, as a member of the public, may intervene in a criminal case for the limited purpose of challenging a pretrial request or order to seal a record or to close a proceeding.” Owens, 27 P.3d at 883. In Owens, the supreme court said:
There is no disputed issue of material fact in the case, and we believe the public interest justifies our considering the case on its merits. Accordingly, we accepted jurisdiction in this case to provide guidance to the parties, to the news media, and to the trial courts of our state. The record before us includes all of the arguments by the State, defense, and the media, as well as Respondent’s legal reasoning supporting his decision to deny the motion to intervene. We conclude that neither additional briefing nor oral argument is necessary or would be helpful for the appropriate resolution of this issue.
Owens, 27 P.3d at 882.
In addition, a 1994 decision by the Kansas Supreme Court on prior restraint illuminates steps for obtaining review of a trial judge’s closure order. In State v. Alston, 887 P.2d 681 (Kan. 1994), the state supreme court reversed a gag order that a judge had issued to prevent publication of a newspaper reporter’s account of court proceedings that he had attended. The supreme court also reversed a contempt citation against the newspaper. The supreme court said that the gag order was an unconstitutional prior restraint, explaining that “those who see and hear what transpired in an open courtroom can report it with impunity,” and “once a public hearing has been held, what transpired there could not be subject to prior restraint.” Alston, 887 P.2d at 688.
At the same time, the Kansas Supreme Court embraced a line of precedent that preserved the media’s defense against “transparently invalid” gag orders. Alston, 887 P.2d at 691 (citing In re Providence Journal Co., 820 F.2d 1342, 1347–48 (1st Cir. 1986), modified on reh’g, 820 F.2d 1354 (1st Cir. 1987)). As noted in Alston, a newspaper is subject to the general rule that persons must obey a judicial order even if they believe it is unconstitutional. Even if they challenge the constitutionality of the order on appeal, they must continue to obey it while awaiting a decision. If they disobey the order and are cited for contempt, they are barred from collaterally attacking the constitutionality of the order during the contempt proceeding. The collateral bar rule has been considered necessary for the “efficient and orderly administration of justice.” Alston, 887 P.2d at 690.
In Alston, however, the Kansas Supreme Court found that the newspaper was not bound by the collateral bar rule when it disobeyed the gag order. The collateral bar rule does not apply when a judicial order is “transparently invalid,” the state supreme court said, explaining:
In this case, the . . . order was transparently unconstitutional. The trial court failed to make the requisite . . . findings. The [newspaper had based its news report on information that was available from] the court’s records and in open court prior to the gag order. The order was issued without a full and fair hearing with all the attendant procedural protection.
Alston, 887 P.2d at 691.
The Kansas Supreme Court found that the newspaper had disobeyed the gag order in good faith. “In the course of two hours, the [newspaper] received notice of the order, contacted the judge, and attempted to contact its attorney and the attorney for the Kansas Press Association . . . .” Alston, 887 P.2d at 691. Relief through the judicial system, however, was not available before the newspaper’s publication deadline. According to the court, “[o]nly where timely access to an appellate court is not available can the newspaper publish and then challenge the constitutionality of the order in contempt proceedings.” Alston, 887 P.2d at 692. Alston established that a newspaper “seeking to challenge an order it deems transparently unconstitutional must concern itself with establishing a record of its good faith effort.” Alston, 887 P.2d at 691.
In 2005, a dispute over a gag order illustrated how a petition for mandamus may be used to seek expedited review. The gag order was issued to prevent a television station from broadcasting a news report that the judge said jeopardized the privacy of a cosmetic surgeon’s patients. After unsuccessfully challenging the restraining order in the lower court, the station filed an “emergency petition for a writ of mandamus” with the Kansas Supreme Court. The petition stated that:
The Kansas Supreme Court has original jurisdiction over proceedings in mandamus under Article 3, Section 3 of the Kansas Constitution. Mandamus is a manner of compelling a public officer to perform a clearly defined duty imposed by law. K.S.A. 60-801; State v. Becker, 264 Kan. 804, 807 (1998). This power includes the right to control the actions of a lower court. See State ex rel. Stephan v. O’Keefe, 235 Kan. 1022, 1024 (1984). In particular, mandamus is appropriate if a lower court’s order destroys or denies a right or privilege that exists as a matter of law with no remedy for appeal. Wesley Medical Center v. Clark, 234 Kan. 13 (1983).
Moreover, mandamus is the only effective remedy to timely right the constitutional wrong that continues to occur every day the prior restraint order remains in effect….
Meredith Corp. d/b/a KCTV5 v. The Hon. Kevin P Moriarty, Petition for Mandamus, Kansas Supreme Court, Case No. 2005-94734. Note: The matter was dismissed as moot Sept. 20, 2005.Compare
III. Access to criminal proceedings
A. In general
Kansas trial judges who consider whether to close a criminal proceeding generally are guided by Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981). In Fossey, the Kansas Supreme Court ruled essentially that criminal proceedings shall not be closed except to prevent a clear and present danger to fairness and a prejudicial effect that cannot otherwise be avoided. Fossey, 630 P.2d at 1182 (citing The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).Compare
B. Pretrial proceedings
In Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981), the Kansas Supreme Court made clear that a presumption of openness applies to pretrial proceedings. Standards on fair trials that the state supreme court adopted include reference to “a preliminary hearing, bail hearing, or any other pretrial proceeding, including a motion to suppress.” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).Compare
C. Criminal trials
In State v. Dixon, 112 P.3d 883 (Kan. 2005), the Kansas Supreme Court reversed a trial judge’s closure of a courtroom during the announcement of a jury verdict. The defendant was convicted of two murders and other charges in connection with an explosion and fire at an apartment building. The purpose of the courtroom closure was to prevent news of the verdict from reaching jurors who had been selected to sit in a pending, related criminal case.
The Kansas Supreme Court indicated that the process by which the trial judge had decided to close the proceeding complied with standards set in Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501 (1984), observing that “the trial court went to great lengths to articulate the interest to be served by closure as well as its findings on reasonable alternative means.” Dixon, 112 P.3d at 908. The state supreme court also said that closure of proceedings must be consistent with both the First and Sixth amendments. As the court explained:
Here, the trial court considered the advocated interests and the alternatives. The trial court exercised care in striking a balance of those interests. But the court’s decision was made in response to intervention by area newspapers, whose interests were the First Amendment interests of media freedom. Although defense counsel made a simple statement of objection to closing the courtroom, the Sixth Amendment interest in a public trial seems not to have been pressed. [I]t was [the defendant’s] right to a public trial that is at issue here.
Dixon, 112 P.3d at 910.
The closure, the supreme court held, “was inconsistent with the substantial right of the defendant to a public trial and not harmless error.” Dixon, 112 P.3d at 910.
Note: State v. Dixon was disapproved on other grounds by State v. Wright, 224 P.3d 1159 (Kan. 2010).Compare
D. Post-trial proceedings
In 1980, in Stephens v. Van Arsdale, 608 P.2d 972, the Kansas Supreme Court concluded that the presumption of openness includes proceedings that follow a trial. The state supreme court said that the public and the media “are free to attend the original trial or the sentencing hearing or any post-judgment hearings.” Van Arsdale, 608 P.2d at 985. The court said that open post-trial proceedings include a hearing before a judge on whether to expunge a defendant’s criminal conviction from court records. Van Arsdale, 608 P.2d at 985.
In 1981, in Kansas City Star Co. v. Fossey, 630 P.2d 1176, when the Kansas Supreme Court adopted American Bar Association Standards on fair trials, it extended the presumption of openness “‘to every phase of judicial proceedings in a criminal case.’” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).Compare
E. Appellate proceedings
Access to appellate courts is presumed in Kansas. Moreover, in 2008, the Kansas Legislature enacted a law that requires state courts to conduct a hearing before they seal records or close a proceeding. See K.S.A. 60-2617. The law requires judges to specify their reasons for denying access to proceedings or records and base their decision on an “identified safety, property or privacy interest.” K.S.A. 60-2617(d). The law originated in response to “two sealed, abortion-related lawsuits before the Kansas Supreme Court.” Bill inspired by sealed abortion cases approved, The Associated Press/Lawrence Journal-World (March 1, 2008).Compare
IV. Access to criminal court records
A. In general
The presumption that criminal court records are open, established in Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981), was reaffirmed in Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001). As the Kansas Supreme Court said,
In Fossey, we held that a trial court . . . may seal the record of . . . proceedings. However, such closure is permitted only if the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means.
Owens, 27 P.3d 881, 883.
The U.S. Court of Appeals for the Tenth Circuit, whose jurisdiction includes Kansas, recognized a First Amendment access right to court records, although only in a limited way. A district judge in Colorado had sealed records in connection with the criminal proceedings that followed the 1995 bombing of the Murrah Federal Building in Oklahoma City, Oklahoma. In a 1997 case, United States v. McVeigh, the Tenth Circuit noted that, under the common law, court records “are presumptively available to the public, but may be sealed if the right to access is outweighed by the interests favoring nondisclosure.” McVeigh, 119 F.3d 806, 811 (10th Cir. 1997) (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 602 (1978)). The common law, it also was noted, provides that a judge’s decision to seal records may be reviewed for abuse of discretion.
Before sealing the records in the Oklahoma City bombing case, however, the Colorado district judge had applied a First Amendment standard rather than the common law. The Tenth Circuit observed that, in a number of other federal courts, “the logic of Press-Enterprise II[, 478 U.S. 1 (1986),] extends to at least some categories of court documents and records, such that the First Amendment balancing test there articulated should be applied before such qualifying documents and records can be sealed.” McVeigh, 119 F.3d at 811. The Tenth Circuit declined to hold that the media generally have a First Amendment-based right of access to court records. Nevertheless, in its review of the media’s request for records in the Oklahoma City bombing case, the court assumed that access in that specific case was “governed by the analysis articulated in Press-Enterprise II.” McVeigh, 119 F.3d at 812. The court explained:
In determining whether a particular type of document is included within the First Amendment right of access, courts engage in a two-pronged inquiry in which they ask: (1) whether the document is one which has historically been open to inspection by the press and the public; and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” This two-part inquiry is referred to as the test of “experience and logic.”
If the qualified First Amendment right of access is found to apply to the documents under the “experience and logic” test, [a] court may then seal the documents only if “closure is essential to preserve higher values and is necessary to serve that interest.”
McVeigh, 119 F.3d at 812–13.
The Tenth Circuit upheld the district judge’s sealing of the records, concluding that when records are closed to the extent permissible under the First Amendment, the closure necessarily also satisfies the common law standard.Compare
B. Arrest records
Access to law enforcement records is governed by the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. In general, arrest reports and mug shots may be withheld, but other kinds of information related to a criminal offense are open, including jail rosters and police blotters.
Under KORA, public records are defined as “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency….” K.S.A. 45-217(g)(1)(A). Such a record also is public if it is originated or held by agency employees or officers pursuant to their official duties and if it is “related to the functions, activities, programs or operations of any public agency.” K.S.A. 45-217(g)(1)(B). A public agency is “the state or any political or taxing subdivision of the state or any office, officer, agency or instrumentality thereof, or any other entity receiving or expending and supported in whole or in part by the public funds appropriated by the state or by public funds of any political or taxing subdivision of the state.” K.S.A. 45-217(f)(1).
When recording information about reported criminal activity, law enforcement agencies use a Standard Offense Report (SOR), a form that was designed by the Attorney General’s Office and the Kansas Bureau of Investigation. As has been explained by the Attorney General’s Office, the front page of the SOR contains: a description of the offense; the type of force involved, if any; identification of the victim as a business or an individual; an individual victim’s name, address, home telephone number, date of birth, driver’s license number, Social Security number, employer, work telephone number, employer’s address, relationship to any suspect, and the type of injury; a description of any property involved in the crime, and identification of the reporting officer. The back page of the SOR contains additional details about the offense, including how it was committed, and information about suspects and evidence. Kan. Atty. Gen. Op. No. 98-38. The front page of the SOR is considered generally open, but the back page is closed.
To the extent that limitations are imposed on access to the SOR, they are derived in part from two KORA provisions. One is K.S.A. 45-221(a)(10), which exempts criminal investigation records from disclosure, and the other is K.S.A. 45-221(a)(30), under which a public records custodian is not required to disclose information that “would constitute a clearly unwarranted invasion of personal privacy.” Because of these provisions, the front page of the SOR is closed to the extent that it includes information considered private, i.e. Social Security numbers and the identities of victims of certain sex crimes, and the back page is entirely exempt from disclosure as a record of a criminal investigation.
Information that would be invasive of personal privacy is defined as that which “would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.” K.S.A. 45-217(b).
According to KORA, criminal investigation records are “compiled in the process of preventing, detecting or investigating violations of criminal law.” K.S.A. 45-217(c). Mug shots may be regarded as criminal investigation records, and law enforcement agencies consequently are not required to disclose them. As the Attorney General’s Office has explained, “The photos of persons who have been arrested are compiled, generally in the form of a book, to aid in identification.” Kan. Atty. Gen. Op. No. 87-25.
When recording information about arrests, law enforcement agencies use a Standard Arrest Report form, which is treated as a criminal history record. Under K.S.A. 22-4707, a criminal history record is not open. However, information related to an arrest may be available under K.S.A. 22-4708, which says:
[A] criminal justice agency may disclose the status of a pending investigation of a named person, or the status of a pending proceeding in the criminal justice system, if the request for information is reasonably contemporaneous with the event to which the information relates and the disclosure is otherwise appropriate.
Information related to arrests also may be obtained from police blotters. The Kansas Supreme Court has characterized a police blotter as a record of “the names of persons arrested by police officers and the nature of the charge on which they are arrested and the date of arrest, amount of bond required and posted, and other information, . . . .”’ Hill v. Day, 215 P.2d 219, 221 (Kan. 1950). KORA specifies that open law enforcement records include “police blotter entries.” K.S.A. 45-217(c). KORA also specifies that, in addition to court records, open law enforcement records include “rosters of inmates of jails or other correctional or detention facilities or records pertaining to violations of any traffic law other than vehicular homicide as defined by” statute. K.S.A. 45–217(c).
Records exempt from disclosure are specified in K.S.A. 45-221. Even so, a public agency may exercise discretion to treat exempt records as open. Under K.S.A. 45-221, a public agency is not flatly prohibited from making a disclosure; rather it “shall not be required to disclose” records identified in the exemptions.Compare
Dockets are presumed to be open records in light of Kansas City Star Co. v. Fossey, 630 P.2d 1176 (Kan. 1981). The Kansas Supreme Court acknowledged “that access to court proceedings should be limited only in exceptional circumstances” and “that the reason for requiring all court proceedings to be open, except where extraordinary reasons for closure are present, [ ] is to enhance the public trust and confidence in the judicial process and to insulate the process against attempts to use the courts as tools for persecution.” Fossey, 630 P.2d at 1181. The state supreme court embraced “a strong presumption in favor of open judicial proceedings and free access to records in a criminal case.” Fossey, 630 P.2d at 1182 (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
Also noteworthy is the state Legislature’s codification of a requirement that state courts conduct a hearing before they seal records or close a proceeding. See K.S.A. 60-2617. In addition, the Kansas Judicial Branch has shown its commitment to openness by publicizing a comment by a former chief justice of the state supreme court:
“Sunshine is the strongest antiseptic-its rays may penetrate areas previously closed....This is not to say that all documents in public offices are open to inspection; only those required by law to be kept and maintained must be made available. The latter, however, must be open for inspection under penalty of law.”
- Former Chief Justice Robert H. Miller, State ex rel Stephan v. Harder, 230 Kan. 573, 581, 641 P.2d 366 (1982).
Dockets and other records are available directly from clerks of Kansas courts. Contact information for the courts is available on the Kansas Judicial Branch’s website. See District Court Contacts, http://www.kscourts.org/kansas-courts/general-information/contacts.asp, and Appellate Court Contacts, http://www.kscourts.org/kansas-courts/general-information/appellate-court-contacts.asp.
The Kansas Judicial Branch has developed a system for electronic filing of court records. Information about the system is available online in Kansas Courts Electronic Filing, http://www.kscourts.org/Cases-and-Opinions/e-filing/default.asp. Also see Rule on Public Access to District Court Records, Kansas Supreme Court Administrative Order 191, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-191-Adopted.pdf.Compare
D. Warrants, wiretaps and related materials
A Kansas statute criminalizes unauthorized disclosures of arrest and search warrants before they are executed. K.S.A. 21-5906 (formerly K.S.A. 21-3827). After being executed, the warrants are considered open. However, for years, even after execution of warrants, the information underlying them generally was inaccessible to the public. Specifically, the authorities could withhold the affidavits that investigators had filed to establish probable cause for issuance of the warrants. One statute, K.S.A. 22-2302, presumed closure of affidavits pertaining to arrests, and another, K.S.A. 22-2502, imposed the same restriction on affidavits related to searches.
Journalists in the state objected to closure of affidavits, arguing that the public had a strong interest in knowing about the affidavits and how they established probable cause for issuance of warrants. Then, in 2014, by a nearly unanimous vote, the Kanas Legislature amended K.S.A. 22-2302 and K.S.A. 22-2502 to presume openness rather than closure of affidavits. The catalyst for the amendments was publicity about an aggressive search in 2012 by a sheriff’s deputies of a Kansas couple’s home. The search yielded no evidence of a crime. Afterward, the couple complained that they and their young children had been held at gunpoint and severely traumatized. To learn the reason for the search, the couple requested the probable cause affidavit that had been filed in support of the search. However, their request was denied. In response to a public outcry, the legislature amended the statutes and allowed public access to affidavits. For accounts of the controversy, see Documents: Evidence flimsy in Leawood drug raid, KCTV-5/Associated Press (May 06, 2013), https://www.kctv5.com/news/documents-evidence-flimsy-in-leawood-drug-raid/article_c4be83cf-2237-54ca-876a-589e6dd6d841.html, and Four Kansas honored for efforts on open government, Kansas Press Association (July 26, 2014), http://kspress.com/news/2014/07/28/four-kansans-honored-for-efforts-on-open-government.
Now, after authorities execute a warrant, the affidavit that supports it must be made available to “any person, when requested.” K.S.A. 22-2302(c)(1)(B) and 22-2502(e)(1)(B). However, an affidavit is not automatically produced immediately upon request. The statutes prescribe a procedure under which the clerk of court receives the request for the affidavit and then notifies the judge, the prosecutor and defendant or defense attorney of the request. The prosecutor also is required to notify the victim of the defendant’s alleged criminal offense. After receiving notice, the prosecutor and the defendant or defendant’s counsel review the requested affidavit and may ask a judge to seal or release it only with redactions. If the prosecutor and defendant or defendant’s attorney proposes to restrict access to the affidavit, they must provide “the reasons supporting” redaction or sealing. K.S.A. 22-2302(c)(3)(A) and (B); 22-2502(e)(3)(A) and (B). The statutes allow up to 10 business days for a response to the request for the affidavit.
The judge may order redaction or sealing if disclosure of the affidavit “would” cause any of 10 harms listed in the statutes. K.S.A 22-2302(4) and K.S.A. 22-2502(4). The harms range from jeopardy to the safety of a crime victim or a witness to revelation of a Social Security number or other such personal information.
The statutes as amended became effective July 1, 2014. Access to affidavits issued before that date may be requested under a provision of the Kansas Open Records Act that allows, but does not require, non-disclosure of a criminal investigation record. K.S.A. 45-221(a)(10). Under this provision, a judge may order disclosure of an affidavit issued before July 1, 2014, if doing so would serve the public interest and under certain other conditions.
Before the statutory amendments that presume openness of arrest and search affidavits, Kanas was considered to be “out of step with most other states in keeping probable cause affidavits . . . under seal even after a case has gone to trial.” An editor of the Wichita Eagle said that criminal proceedings “‘should not be conducted behind a curtain. When they are, citizens are denied a critical opportunity to assess the effectiveness of the criminal justice system.”’ Steve Painter, Opening Arrest Records Splits Prosecutors, Media, Wichita Eagle (Feb. 8, 2006).
Apart from statutes, a federal district court in Kansas in 1992 adopted a position taken in the Fourth Circuit that access to warrant papers may be sought as a matter, not of First Amendment right, but rather of common law. The Kansas court declined to grant access under the common law because of the “sensitive nature of the information contained” in affidavits, the fact that a criminal investigation was ongoing, and a need to protect the identities and the “privacy interests and safety” of persons mentioned in the affidavits. In re Flower Aviation of Kan., Inc., 789 F. Supp. 366, 368 (D. Kan. 1992). The Fourth Circuit case adopted in by the Kansas court said that a judge must consider “all of the relevant facts and circumstances” in deciding whether to file warrant papers under seal or determining that secrecy is not justified. Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989).
Kansas law also has maintained secrecy of procedures related to wiretapping. Disclosures outside of law enforcement about wiretaps, and apart from court proceedings, are proscribed under See K.S.A. 22-2515 and K.S.A. 22-2516.Compare
E. Discovery materials
Kansas appellate courts have not had occasion to apply the U.S. Supreme Court’s ruling in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), that discovery materials are not open. However, the issue has received attention in federal courts with jurisdiction in Kansas. In United States v. Gonzales, 150 F.3d 1246 (10th Cir. 1998), the Tenth Circuit Court of Appeals denied a newspaper’s request for access to transcripts and materials, saying “Discovery proceedings are fundamentally different from other proceedings to which courts have recognized a First Amendment right of access.” Gonzales, 150 F.3d at 1260. In this case, 23 persons had been indicted by a grand jury in New Mexico for drug distribution, murder and other offenses. In denying the newspaper’s request for access to records, the Tenth Circuit observed that, “in many contexts, courts have rejected a constitutional right of access” to such documents as presentence reports; pre-indictment search warrant affidavits; documents considered by the court in ruling on civil discovery motions, and evidence ruled inadmissible by the court in suppression hearings. Gonzales, 150 F.3d at 1261. The Tenth Circuit reasoned that such materials may be withheld because of the need to maintain “effective, efficient, and fair procedures.” Gonzales, 150 F.3d at 1261.
One issue addressed by Kansas state courts is whether coroner’s records are open. In Burroughs v. Thomas, 937 P.2d 12 (Kan. App. 1997), the court considered whether a husband could gain access to records of an autopsy performed on his decedent wife. The coroner who had performed the autopsy claimed that the records were exempt from disclosure. However, the court’s ruling included findings that the records were subject neither to an exemption for medical records nor to an exemption for investigative materials that the coroner had gathered before issuing a final, official report. The court said “no exemption exists for work papers once a report becomes a public record.” Thomas, 937 P.2d at 15.Compare
F. Pretrial motions and records
Pretrial motions and records are accessible the same as any other filings in a case. The Kansas Supreme Court has adopted a “strong presumption in favor of . . . free access to records in a criminal case.” Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981) (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
The presumption of openness extends “‘to every phase of judicial proceedings in a criminal case.’” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)). The Kansas Supreme Court said, “Before pretrial proceedings can be closed or any record sealed, the . . . moving party must establish that: (1) a clear and present danger to the fairness of the trial would exist if the information were publicly disclosed, and (2) the prejudicial effect of such information on the fairness of the trial cannot be avoided by reasonable alternative means . . . .” Fossey, 630 P.2d at 1183 (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).Compare
G. Trial records
Trial records are accessible the same as others in a case. The Kansas Supreme Court has adopted a “strong presumption in favor of . . . free access to records in a criminal case.” Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981) (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).
The presumption of openness extends “‘to every phase of judicial proceedings in a criminal case.’” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)). The Kansas Supreme Court said, “Before pretrial proceedings can be closed or any record sealed, the…moving party must establish that: (1) a clear and present danger to the fairness of the trial would exist if the information were publicly disclosed, and (2) the prejudicial effect of such information on the fairness of the trial cannot be avoided by reasonable alternative means….” Fossey, 630 P.2d at 1183 (quoting Fair Trial and Free Press: Standard 8-3.2 of the American Bar Association’s Standing Committee on Association Standards for Criminal Justice (August, 1978)).Compare
H. Post-trial records
Post-trial records are subject to a presumption of openness that the Kansas Supreme Court established in Kansas City Star Co. v. Fossey, 630 P.2d 1176 (1981). The state supreme court said the presumption extends “‘to every phase of judicial proceedings in a criminal case.’” Fossey, 630 P.2d at 1182 (quoting The American Bar Association Standards Relating to the Administration of Criminal Justice: Fair Trial and Free Press § 8-3.2 (2d ed. 1978)).
However, the presumption may be overcome by specific statutory exemptions, such as K.S.A. 22-3711, which exempts various kinds of correctional documents from disclosure, including records of “supervision history” of inmates. The exemption provides that:
The presentence report, the preparole report, the pre-postrelease supervision report and the supervision history, obtained in the discharge of official duty by any member or employee of the Kansas parole prisoner review board or any other employee of the department of corrections, shall be privileged and shall not be disclosed directly or indirectly to anyone other than the parole prisoner review board, the judge, the attorney general or others entitled to receive the information, except that the parole board, secretary of corrections or court may permit the inspection of the report or parts of it by the defendant, inmate, defendant’s or inmate’s attorney or other person having a proper interest in it, whenever the best interest or welfare of a particular defendant or inmate makes the action desirable or helpful.
In Wichita Eagle and Beacon Publ’g Co., Inc. v. Simmons, 50 P.3d 66 (Kan. 2002), the scope of K.S.A. 22-3711 was at issue. In Simmons, the newspaper requested records that included:
(1) documents which identify by name all inmates, parolees and/or others supervised by the Department of Corrections who have been charged with murder or manslaughter during 1996, 1997, 1998, and 1999;
(2) documents containing details regarding the crimes of which these individuals have been accused;
(3) minutes of the meetings of any serious incident review board in which the crimes or alleged crimes of these individuals are discussed; and,
(4) notes, decisions, reports, and/or documents reflecting decisions or actions taken by any of the serious incident review boards which have considered the above-referenced crimes and parolees.
Simmons, 50 P.3d at 79.
The Department of Corrections claimed that some of the requested records were exempt from disclosure, and the newspaper filed a mandamus action to compel the Secretary of Corrections to provide access to them. The Kansas Supreme Court considered the extent to which the exemption, in K.S.A. 22-3711, for records of “supervision history” was in conflict with a disclosure provision in the Kansas Open Records Act (KORA), K.S.A. 45-221(a)(29), which
mandates that a releasee’s “name; photograph and other identifying information; sentence data; parole eligibility date; custody or supervision level; disciplinary record; supervision violations; conditions of supervision ...; location of facility where incarcerated or location of parole office maintaining supervision and address ... shall be subject to disclosure.”
Simmons, 50 P.3d at 83.
The Kanas Supreme Court found that the KORA disclosure provision, K.S.A. 45-221(1)(29), was not in conflict with the exemption for correctional records in K.S.A. 22-3711. The state supreme court said the exemption “restricts disclosure of the supervising parole officer’s personal observations, sensitive personal information about the offender and third parties, contacts, conversations, observations, investigations, and interventions concerning a particular offender.” Simmons, 50 P.3d at 83. Also exempt is “information concerning parole requirements for mental health or substance abuse counseling is not subject to disclosure. Simmons, 50 P.3d at 83. However, a record of “pending criminal charges filed against a supervised individual is subject to disclosure.” Simmons, 50 P.3d at 83.
The Kansas Supreme Court also considered the scope of a KORA provision that exempts public agencies from disclosing:
Notes, preliminary drafts, research data in the process of analysis, unfunded grant proposals, memoranda, recommendations or other records in which opinions are expressed or policies or actions are proposed, except that this exemption shall not apply when such records are publicly cited or identified in an open meeting or in an agenda of an open meeting.
The Kansas Supreme Court said that the exemption did not apply to the newspaper’s request for “access to minutes of the meetings of serious incident review boards discussing the crimes or alleged crimes of supervised individuals and records reflecting decisions or actions taken by any of the serious incident review boards in regard to murders and manslaughters committed by parolees from 1996 through 1999.” Simmons, 50 P.3d at 83. The supreme court explained that the newspaper specifically had not sought records of proposed policies or actions, which were exempt under K.S.A. 45-221(a)(20), but rather had requested “records reflecting decisions or actions already taken by the serious incident review boards.” The supreme court stressed that the exemption “does not extend to records on policies currently in place or actions already taken.” Simmons, 50 P.3d at 83.Compare
I. Appellate records
Kansas appellate cases and opinions are available through the Kansas Judicial Branch website. See Cases and Opinions, http://www.kscourts.org/Cases-and-Opinions/default.asp. Records associated with cases are available from the Clerk of Appellate Courts, http://www.kscourts.org/appellate-clerk.Compare
J. Other criminal court records issues
Procedures for gaining access to court records are based on the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. Procedures set forth in K.S.A. 45-220 provide that a public agency may require that records requests be submitted in writing. A form for requesting records is available online from the Kanas Judicial Branch. See Request for Court Records at http://www.kscourts.org/appellate-clerk/general/open-records-act/KORARequestForm.pdf.
Under KORA, records that need not be disclosed include those that: are privileged under the rules of evidence; would reveal the identity of any undercover agent or any informant reporting a specific violation of law; are about criminal investigations, although a court may order disclosure if it would serve the public interest and meet certain other conditions; are software programs for electronic data processing, although a registry must be available about the nature of computerized information; are the work product of an attorney; identify an inmate of a correctional inmate, with certain exceptions and that may be an invasion of personal privacy if disclosed. See generally K.S.A. 45-221. KORA also includes an exemption for records that are protected from disclosure by other state statutes, federal law, or rule of the Kansas Supreme Court. K.S.A. 45-221(a)(1).
If records are in audio/visual form, a person may claim a right to inspect them under KORA. K.S.A. 218(a). However, KORA does not require officials to make copies of “radio or recording tapes or discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or visual items or devices,” unless the materials were shown publicly and are not subject to copyright protection. K.S.A. 45-219(a).Compare
V. Access to civil proceedings
A. In general
Kansas courts have not had occasion to rule specifically that the presumption of openness established in a criminal context, in Kansas City Star Co. v. Fossey, 630 P.2d 1176, 1182 (Kan. 1981), also applies to civil proceedings. However, the Kansas Judicial Branch maintains a policy of openness that applies to civil, as well as criminal, proceedings. See, for example, Request Court Records, http://www.kscourts.org/rules-procedures-forms/open-records-procedures/default.asp.
Although Kansas courts have focused on openness in criminal cases, a federal court in the state has ruled in favor of open civil proceedings. A defendant in Mike v. Dymon, Inc., No. 95-2405-EEO, 1997 WL 38111 (D. Kan. 1997), allegedly breached an employment contract by making an unauthorized disclosure about a business. The defendant, without objection from the plaintiff, asked that the courtroom proceedings “be closed to unauthorized personnel during presentation or discussion of ‘competitive confidential’ or ‘confidential’ information.” In rejecting the request for closure, the judge recognized “that members of the public possess both a common law and First Amendment right of access to civil trials.” Dymon, 1997 WL 38111, at *1 (citing Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066–71 (3rd Cir. 1984)). The judge quoted In re Krynicki, 983 F.2d 74, 75 (7th Cir. 1992), saying:
“[W]hat happens in the halls of government is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification.”Compare
B. Pre-trial proceedings
Kansas rules on civil procedure do not specify that proceedings other than trials must be open. To the extent that the rules address the issue of accessibility apart from trials, they only say that “[a]ll other acts or proceedings, including the entry of a ruling or judgment, may be done or conducted by a judge or judge pro tem in chambers, without the attendance of the clerk or others.” K.S.A. 60-104.
As for depositions, the rules, in K.S.A. 60-230(h), limit attendance to the “officer before whom the deposition is being taken,” along with the deponent, the parties and their attorneys, and the attorneys’ paralegals or legal assistants, and the person recording the deposition.
Kansas civil procedure provides that “[a]ll trials on the merits must be conducted in open court.” K.S.A. 60-104. Judges must conduct trials “in a regular courtroom” or may use alternative, “suitable facilities.” K.S.A. 60-104 and K.S.A. 20-347.Compare
D. Post-trial proceedings
Nothing in Kansas case law or procedural rules indicates that post-trial proceedings in a civil case are not subject to a presumption of openness, which was established in the context of a criminal case in Kansas City Star Co. v. Fossey, 630 P.2d 1176 (1981).Compare
E. Appellate proceedings
Kansas appellate courts are open in civil as well as criminal matters. The policy of openness is evident in the Kansas Supreme Court’s practice of streaming audio and video of oral arguments. See Kansas Judicial Branch, Kansas Supreme Court Live and Archived Oral Arguments, http://www.kscourts.org/Kansas-courts/supreme-court/arguments.asp.Compare
VI. Access to civil records
A. In general
Rulings by the Kansas Supreme Court have favored openness of court records generally. Moreover, a presumption of openness applies to court records, regardless of whether they are criminal or civil, under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch. See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf.
Also, Kansas law allows a court to seal or redact records only after finding that a safety, property, or privacy interest “outweighs the strong public interest” in having access to information. K.S.A. 60-2617(d).
The Kansas Judicial Branch website includes links to court records in civil, as well as criminal, cases. The records are accessible under these headings: Recent and Published Opinions, Appellate Case Inquiry System, Search District Court Records by County ($ Fee $), Supreme Court Docket and Court of Appeals Docket. See Kansa Judicial Branch, Featured Links, http://www.kscourts.org.Compare
Dockets are among records presumed to be open in civil cases. A presumption of openness applies to court records, regardless of whether they are criminal or civil, under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch. See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf.Compare
C. Discovery materials
Kansas appellate courts have not had occasion to rule, on the basis of Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), that pretrial discovery documents are not open. Even so, in Kansas courts, discovery documents are subject to a wide range of protections. In a defamation case brought by a man against his former wife, a Court of Appeals judge observed that discovery documents include “confidential or otherwise sensitive material, such as medical records, tax and financial information, or proprietary trade or research data.” Purdum v. Purdum, 48 Kan.App.2d 938, 746 (2013) (Hon. G. Gordon Atcheson, dissenting and citing K.S.A. 2012 Supp. 60-226(c)). The Kansas Code of Civil Procedure, the judge said, “recognizes multiple ways of protecting that sort of documentary evidence through protective orders or other judicial control.” Purdum, 48 Kan.App.2d at 746.
The accessibility of discovery documents has been addressed by federal courts in Kansas. For example, in a dispute over free speech rights of police in Topeka, Kansas, a federal magistrate judge considered whether plaintiffs could release a defendant police chief’s deposition to the public. The judge noted that, under a court rule, a deposition “‘shall not be filed with the clerk unless ordered by the court.’” Eaton v. Harsha, 2006 WL 3316792, at *2 (D. Kan. 2006). The judge said “depositions (as well as other pre-trial discovery materials) are not public components of civil litigation until filed under court order or introduced into evidence,” but “such materials may be disseminated to third parties unless sealed by a valid protective order.” Harsha, 2006 WL 3316792, at *2. Once a protective order is issued, it “prohibits the party from disseminating information obtained through pre-trial discovery unless the information is ‘gained through means independent of the court’s processes.’” Harsha, 2006 WL 3316792, at *2. (Related cases are Eaton v. Harsha, 2006 WL 963960 (D. Kan. 2006); Eaton v. Harsha, 2006 WL 3333791 (D. Kan. 2006), and Eaton v. Harsha, 505 F. Supp. 2d 948 (D. Kan. 2007).)
In 2000, in a Kansas federal district court, a dispute arose over whether a litigant should be allowed to publicize videotaped depositions. The judge did not limit the plaintiff’s use of his own videotaped deposition but did limit his use of a defendant’s taped deposition.
The dispute began when a Kansas state court upheld an injunction that prevented a television broadcaster’s former employee and her husband from picketing or threatening to picket the broadcaster’s advertisers. Drake v. Benedek Broad. Corp., 983 P.2d 274 (Kan. App. 1999). The husband contested the outcome by claiming violation of his civil rights and filing suit in federal court against the broadcaster and others. Drake v. Benedek Broad. Corp., 2000 WL 528059 (D. Kan. 2000). When the plaintiff prepared to videotape a defendant’s deposition, the defendant submitted evidence indicating that the plaintiff planned to create and sell a documentary based on the litigation.
The judge then imposed conditions on the plaintiff’s videotaping of the defendant’s deposition, so that it would “be used solely for purposes of the lawsuit.” Drake v. Benedek Broad. Corp., 2000 WL 156825, at *2 (D. Kan. 2000) (citing Paisley Park Enters., Inc. v. Uptown Prods., 54 F. Supp. 2d 347, 349–50 (S.D.N.Y. 1999), in which parties were ordered to select a neutral custodian to take possession of the original videotape and were prohibited from making copies).
When the plaintiff prepared to videotape his own deposition, the defendant asked the judge to limit use of the deposition to purposes related to the litigation. The judge, however, denied the request, saying the plaintiff had “made it clear that he is not concerned with protecting any privacy interests he may have.” Drake v. Benedek Broad. Corp., 2000 WL 274093, at *1 (D. Kan. 2000).
The U.S. Court of Appeals for the Tenth Circuit has recognized a litigant’s freedom to release discovery documents but also a judge’s prerogative to prevent third-party access to them. The court ruled against a newspaper that sought access to discovery documents in a case that involved a hospital association and a state agency. Citing Seattle Times Co. v. Rhinehart, the court said it “may be conceded that parties to litigation have a constitutionally protected right to disseminate information obtained by them through the discovery process absent a valid protective order. However, the court said, it “does not follow that they can be compelled to disseminate such information” to the media or others. Okla. Hosp. Ass’n v. Okla. Publ’g Co., 748 F.2d 1421, 1424 (10th Cir. 1984), cert. denied, 473 U.S. 905 (1985).Compare
D. Pre-trial motions and records
The Kansas Judicial Branch reports that court case files are among commonly requested records, and Judicial Branch policy presumes openness of the file contents, including transcripts, final judgments, court budgets and certified oaths of office. See Request Court Records, http://www.kscourts.org/rules-procedures-forms/open-records-procedures/default.asp.Compare
E. Trial records
A presumption of openness applies to trial records in civil cases under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch. See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf .Compare
F. Settlement records
Kansas law allows a court to seal or redact records only after finding that a safety, property, or privacy interest “outweighs the strong public interest” in having access to information. K.S.A. 60-2617(d).
In an interpretation of the Kansas Open Records Act, the Kansas Attorney General has said that a settlement agreement entered into by a city is a public record, and it cannot be confidential. If a contractual provision attempts to close the conditions of the settlement agreement, it “is void as against public policy.” Op. Kan. Att’y Gen. No. 93-55.Compare
G. Post-trial records
A presumption of openness applies to post-trial records in civil cases under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch. See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf.Compare
H. Appellate records
A presumption of openness applies to appellate records in civil cases under the Kansas Open Records Act, 45-215 et seq., as implemented by the Kansas Judicial Branch. See Kansas Judicial Branch, Administrative Order No. 156, Administration of the Kansas Open Records Act, http://www.kscourts.org/kansas-courts/supreme-court/administrative-orders/Admin-order-156.pdf. Rules in appellate cases are accessible on the Kansas Judicial Branch’s website, under Cases and Opinions, http://www.kscourts.org/Cases-and-Opinions/default.asp. Records associated with appellate cases may be requested from the Clerk of the Appellate Courts, http://www.kscourts.org/appellate-clerk.Compare
I. Other civil court records issues
Court rules on access to Kansas court records are based on the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. If records are in audio/visual form, a person may claim a right to inspect them under KORA. K.S.A. 218(a). However, KORA does not require officials to make copies of such materials, unless the materials were shown publicly and are not subject to copyright protection. K.S.A. 45-219(a).Compare
VII. Jury and grand jury access
A. Access to voir dire
In State v. Dixon, 112 P.3d 883 (Kan. 2005), the Kansas Supreme Court reaffirmed a presumption in favor of access to court proceedings and approvingly cited Press-Enterprise I, 464 U.S. 501 (1984), which held that voir dire is presumed to be open.
Note: State v. Dixon was disapproved on other grounds by State v. Wright, 224 P.3d 1159 (Kan. 2010).Compare
B. Juror identities, questionnaires and other records
The Kansas Supreme Court has prescribed when a trial judge may grant anonymity to jurors in criminal trials:
Empaneling an anonymous jury is viewed as a drastic measure which should be undertaken only under certain limited circumstances. The trial court must balance the need to ensure juror safety against the defendant’s right to the presumption of innocence and the ability to conduct an effective voir dire. This balancing test is met where (1) there is strong reason to believe the jury needs protection and (2) the court takes reasonable precautions to minimize any prejudicial effects on the defendant and to ensure his or her fundamental rights are protected.
State v. Brown, 118 P.3d 1273, 1279 (Kan. 2005) (citations omitted).
The Kansas Supreme Court noted that states generally follow federal practice in requiring that a jury be anonymous only for “a compelling reason.” Brown, 118 P.3d at 1279. The court said a finding that a jury needs protection may be based on the following factors:
(1) the defendants’ involvement in organized crime; (2) the defendants’ participation in a group with the capacity to harm jurors; (3) the defendants’ past attempts to interfere with the judicial process or witnesses; (4) the potential that, if convicted, the defendants will suffer a lengthy incarceration and substantial monetary penalties; and, (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment.
Brown, 118 P.3d at 1279 (citations omitted).
In Brown, the state supreme court approvingly cited State v. Tucker, 657 N.W.2d 374 (Wis. 2003), which said, “‘A jury is typically deemed “anonymous” when juror information is withheld from the public and the parties themselves. [Citation omitted.]’”
Regarding information about juries generally, the Kansas Supreme Court has a rule that states: “A juror questionnaire is not a public record under the Kansas Open Records Act.” See Kan. Sup. Ct. R. 167, Use of Juror Questionnaire, http://www.kscourts.org/rules/District_Rules/Rule%20167.pdf, which appears in Kansas Judicial Branch, Rules Adopted by the Supreme Court/Rules Relating to District Courts/Trials and Related Matters, http://www.kscourts.org/rules/District_Court.asp.
A Kansas statute, K.S.A. 22-3408(1), states that in preparation for a trial, “a list of prospective jurors shall be filed in the office of the clerk of the court and shall be a public record.” The statute originally required that prospective jurors’ addresses be included on the list with their names. However, in 2017, the state legislature amended the statute to omit the reference to addresses. The legislature acted in response to state judges who had proposed that names of prospective jurors, as well as their addresses, not be a public record. The judges said they sought to protect jurors from harassment and intimidation by anyone who wanted to influence the outcome of a case or retaliate for an adverse verdict. Transparency advocates criticized the judges as seeking to promote anonymous juries. The legislature compromised by retaining prospective jurors’ names on the public record but omitting their addresses. See Kansas judges back off effort to keep jurors’ names secret, The Associated Press/ABC News (April 30, 2017), http://abcnews.go.com/amp/Politics/wireStory/kansas-judges-back-off-effort-jurors-names-secret-47114525.Compare
C. Grand jury proceedings and records
Kansas law specifies who may be present during a grand jury proceeding. According to K.S.A. 22-3010, authorized persons are the “[p]rosecuting attorneys, special counsel employed by the grand jury, the witness under examination and his counsel, [and] interpreters when needed.” In addition, an official reporter may be present “for the purpose of taking the evidence.” The law stipulates that “no person other than the jurors may be present while the grand jury is deliberating or voting.” K.S.A. 22-3010.
Apart from the grand jury, the Kansas attorney general’s office and county and district attorneys have authority to conduct inquisitions to investigate “any alleged violation of the laws.” K.S.A. 22-3101(1) (2007); State v. Cathey, 741 P.2d 738, 744 (Kan. 1987). The purpose of an inquisition may be either to determine probable cause for a criminal prosecution or to gain sworn testimony following an indictment. According to the Kansas Supreme Court, an inquisition is like a “one-person grand jury” and may be closed. Cathey, 741 P.2d at 744.
A Kansas statute limits the conditions under which records of grand jury proceedings may be disclosed, providing that:
[A] juror, attorney, interpreter, reporter or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. … The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.
D. Interviewing jurors
Kansas courts generally preclude jurors from being interviewed by journalists during trial. A bar association guide for jurors says they
should not use social media to talk about the trial or express any views while the case is pending. Jurors must try to avoid and never let TV, radio, newspaper or internet articles on the trial affect any decision. They may be incomplete or biased and a miscarriage of justice could result. During the trial, do not read, view, or listen to news reports or search the internet relating to the case or trial.
A Juror’s Rights and Responsibilities, Kansas Bar Association, https://c.ymcdn.com/sites/www.ksbar.org/resource/resmgr/Public_Services/pamphlets/jurors_rights_responsibilities/JurorsRightsResponsibilities.pdf.
Model instruction to jurors in criminal cases have included one saying: “[Y]ou must not communicate with anyone about this case or your jury service, and you must not allow anyone to communicate with you.” See 50.010 Instruction for Impaneled Jurors, Pattern Instructions Kansas – Criminal 2012, Kansas Judicial Council.
For jurors in civil cases, model instructions have included one saying:
Until all of the evidence has been presented and the final instructions given by the judge, jurors must not discuss the case among themselves or with anyone else, including anyone outside the courthouse. If anyone attempts to talk with a juror about the case, the juror should tell this person that such conversation is not proper and should cease. The juror should also report the matter to the bailiff at the earliest opportunity.
101.02 Handbook for Jurors/IX. Conduct of the Jury During Trial, Pattern Instructions Kansas – Civil 2011, Kansas Judicial Council.
Participants in proceedings of a Kansas grand jury generally are prohibited from making disclosures. They “may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” K.S.A. 22-3012. Kansas appellate courts have not specifically addressed whether K.S.A. 22-3012 is intended to silence participants in grand jury proceedings after the grand jury’s session has ended. The Kansas Supreme Court only has indicated that it may narrowly construe K.S.A. 22-3012, which says, “No obligation of secrecy may be imposed upon any person except in accordance with this rule.” See State ex rel. Brant v. Bank of America, 31 P.3d 952, 956 (Kan. 2001).
In 2006, a Kansas district court judge issued a protective order to prevent media access to grand jurors. An evangelical group successfully had petitioned to empanel the grand jury after raising concerns about allegedly pornographic enterprises. The judge who issued the protective order told the jurors, “It was ‘extremely important’ not to tell family members, friends, reporters or anyone else about grand jury business, saying disclosure could allow someone to escape, allow destruction of evidence and damage an innocent person. Confidentiality also is to protect jurors from ‘improper contacts.’” Steve Fry, Rare Grand Jury Chosen, Topeka Capital-Journal (June 8, 2006).
In this case, In re Grand Jury Petition, 2006 WL 1620461 (Kan. Dist. Ct. 2006), the judge observed that the press customarily is excluded from grand jury proceedings, citing Brangburg v. Hayes, 408 U.S. 665, 684–85 (1972), and that grand jury secrecy is “‘indispensable’ to the administration of justice,” citing United States v. Johnson, 319 U.S. 503, 513 (1943). Privacy and safety of the grand jurors are “of paramount importance,” the judge said. He ordered the media not to photograph or interview grand jurors while they were in session and not to enter the grand jury room. The judge also prohibited news reporters from making “reports to their news agencies” in the vicinity of the grand jury on “any day in which it was in session.” In re Grand Jury Petition, 2006 WL 1620461 at *1–2.Compare
VIII. Proceedings involving minors
The Kansas juvenile code provides that, in general, “[a]ll hearings shall be open to the public . . . .” A hearing may be closed only if a judge determines that opening it “is not in the best interests of the victim or of any juvenile who at the time of the alleged offense was less than 16 years of age.” The rule in favor of openness applies to “detention, first appearance, adjudicatory, sentencing and all other” juvenile hearings. K.S.A. 38-2353(a).
In a 2008 case, the Kansas Supreme Court observed that the Legislature generally had “eliminated the presumption of confidentiality” for juvenile hearings, and also acknowledged various ways in which juvenile records have been opened. In re L.M., 186 P.3d 164, 170 (Kan. 2008) (citing K.S.A. 38-2353). The official file in a juvenile case is open, with an exception for juveniles under the age of fourteen, if a judge finds that closure is in their best interests. In re L.M., 186 P.3d 164 (citing K.S.A. 38-2309(b)). Also, law enforcement records and municipal court records for juveniles age fourteen and over are open on the same terms as records for adults. In re L.M., 186 P.3d 164 (citing K.S.A. 38-2310(c)). Confidentiality applies only to the law enforcement and municipal records of juveniles under the age of fourteen. In re L.M., 186 P.3d 164 (citing K.S.A. 38-2310(a)).
The juvenile code makes clear that a judge may close a hearing only after he or she “determines” that an open hearing would not be in the best interest of a juvenile or victim who was under sixteen years of age at the time of the offense. K.S.A. 38-2353(a).Compare
Kansas statutes define a “child in need of care” as a person under 18 years of age who is “without adequate parental care, control or subsistence,” has been abused or abandoned or is otherwise at risk in specified ways. See K.S.A. 38-2202. The statutes provide for confidentiality of records related to a child in need of care. For example, in K.S.A. 38-2209, “pleadings, process, service of process, orders, writs and journal entries reflecting hearings held and judgments and decrees entered by the court” are contained in an “official file,” which is categorized as confidential. The statute requires that the official file “shall be kept separate from other records of the court.” Access to child-in-need-of-care files is limited to persons listed in K.S.A. 38-2211, although a court may authorize conditional access by “[a]ny other person.” According to K.S.A. 38-2212(b) and (c), officials involved in child-of-care cases may exchange information that is “reasonably necessary to carry out their lawful responsibilities, to maintain their personal safety and the personal safety of individuals in their care, or to educate, diagnose, treat, care for or protect a child alleged to be in need of care.” However, under K.S.A. 38-2212(d)(3):
Information from confidential reports or records of a child alleged or adjudicated to be a child in need of care may be disclosed to the public when:
(A) The individuals involved or their representatives have given express written consent; or
(B) the investigation of the abuse or neglect of the child or the filing of a petition alleging a child to be in need of care has become public knowledge, provided, however, that the agency shall limit disclosure to confirmation of procedural details relating to the handling of the case by professionals.
Also, K.S.A. 38-2212(e) provides that, after in camera inspection, a court may order disclosure of certain confidential records “pursuant to a determination that the disclosure is in the best interests of the child who is the subject of the reports or that the records are necessary for the proceedings of the court and otherwise admissible as evidence.” In addition, K.S.A. 38-2212(f) (1) provides that, under certain conditions, if child abuse or neglect results in a child fatality or near fatality, child-in-need-of care records become public.
In general, adjudicatory proceedings related to a child-of-care case are open. K.S.A. 38-2247 allows “attendance by any person unless the court determines that closed proceedings or the exclusion of that person would be in the best interests of the child or is necessary to protect the privacy rights of the parents.” K.S.A. 38-2247(a)(2) specifies that members of the news media who attend an adjudicatory proceeding must comply with Kansas Supreme Court Rule 1001 regarding use of cameras in courtrooms. See Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
However, under K.S.A. 38-2247(b), a proceeding that pertains specifically “to the disposition of a child adjudicated to be in need of care” must be closed except to “the parties, the guardian ad litem, interested parties and their attorneys, officers of the court, a court appointed special advocate and the custodian.” Additional persons may attend if a court determines that their presence during the proceeding “would be in the best interests of the child or the conduct of the proceedings.” K.S.A. 38-2247(b)(1).Compare
C. Other proceedings involving minors
Under the Kansas Adoption and Relinquishment Act, K.S.A. 59-2111 et seq., records of adoptions “shall not be open to inspection or copy by persons other than the parties in interest and their attorneys” and certain others, absent an order of the court. K.S.A. 59-2122(a). However, the Act sets forth a procedure for “genetic parents” to contact the adoptive parents through the state Department of Social and Rehabilitation Services. K.S.A. 59-2122(b).
Under the Kansas Parentage Act, K.S.A. 23-2201 et seq., court findings that form the basis for a new birth registration, as well as the original birth certificate, “shall be kept in a sealed and confidential file and be subject to inspection only in exceptional cases upon order of the court for good cause shown” or in connection with child support enforcement services. K.S.A. 23-2222(c).
Kansas law does not close records in divorce cases. As a state agency reports, “Divorce information is open to the public at the county district court level.” Kansas Department of Health and Environment, Divorce Certificates, http://www.kdheks.gov/vital/divorce.html.Compare
D. Prohibitions on photographing or identifying juveniles
Under Kansas Supreme Court Rule 1001(e)(7), a trial judge must prohibit photographing of a juvenile, as well as audio recording, unless the juvenile is being prosecuted as an adult in a criminal proceeding as authorized by K.S.A. 38-2347. However, even though the rule permits photographing of a juvenile who is tried as an adult, it allows a judge to issue a “directive to the contrary.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
In a 2005 murder case in Douglas County, Kansas, a judge objected to coverage by a sketch artist. The judge ordered the Lawrence Journal-World newspaper not to publish the artist’s sketches of adult witnesses in a murder trial. The judge concluded that “courtroom rules limiting photography of certain witnesses also apply to drawings by sketch artists.” Eric Weslander, Judge bars sketches from publication, Lawrence Journal-World (June 17, 2005). The judge later reversed her order, allowing publication of the sketches of the adults, but she separately ordered the newspaper not to publish sketches of two young teenagers who testified in the case.
After filing a motion for reconsideration, which the judge denied, the World Company, publisher of the Journal-World, petitioned for mandamus in the Kansas Supreme Court. The World Company argued that the judge’s order was erroneous because the rules regarding cameras in the courtroom are silent about sketch artists. Memorandum in Support of Petition for Writ of Mandamus at 2, World Co. v. Martin, No. 05-94706-S (Kan. June 17, 2005).
The World Company also asserted that the judge’s order was a prior restraint and was imposed without a hearing as constitutionally required. The World Company further argued that there was no need for the order, because an artist’s sketch provides information to the public but yet is not sufficiently accurate to make witnesses identifiable and therefore does not jeopardize their privacy interests. The World Company moved for an expedited hearing, but was unsuccessful. The state supreme court denied the World Company’s petition about two months after the trial had ended. Denial of Petition for Writ of Mandamus, World Co. v. Martin, No. 05-94706-S (Kan. Sept. 20, 2005); see also Lawrence Man Gets Life Term in Wife’s Murder, WIBW-TV (July 21, 2005).Compare
E. Minor testimony in non-juvenile courts
Kansas allows victims of crime under 13 years of age to testify in court via closed-circuit television or a video recording. K.S.A. 22-3434. To qualify a minor to give televised or video-recorded testimony, “The state must establish by clear and convincing evidence that to require the child who is the alleged victim to testify in open court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify.” K.S.A. 22-3434(b). When the child is before a camera giving testimony, no one may be present in the room except for the defendant’s attorneys, the prosecution, the equipment operators, and “any person whose presence would contribute to the welfare and well-being of the child.” K.S.A. 22-3434(c)(1).
Kansas Supreme Court Rule 1001 on media coverage of court proceedings includes restrictions on photographing or recording crime victims, witnesses and juveniles. See “Cameras and other technology in the courtroom” section below, and Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.Compare
IX. Special proceedings
A. Tribal Courts in the jurisdiction
In Kansas, tribal courts are maintained by the Iowa Tribe of Kansas and Nebraska, the Kickapoo Tribe in Kansas, the Prairie Band Potawatomi Nation, and the Sac and Fox Nation of Missouri in Kansas and Nebraska. The Prairie Band Potawatomie Nation has made its Law and Order Code available online, and it includes the following provisions:
Section 2-2-13. Records
(D) All Court records shall be public records except as otherwise provided by law.
Section 2-2-14. Files.
(A) Except as otherwise provided by law, Court files are generally open to the public. Any person may inspect the records of a case and obtain copies of documents contained therein during normal business hours.
Prairie Band Potawatomie Nation, Law and Order Code, https://www.narf.org/nill/codes/prairie_band_potawatomi/index.html.
According to the administrative office of the Prairie Band Potawatomie Nation’s Judicial Council, the tribal court proceedings generally are open. Records and proceedings that may be closed include such matters as juvenile cases, children in need of care, adoption, and tribal enrollment or disenrollment, as well as domestic disputes at the request of a party. Also, records of employment dispute may be closed.
According to judicial administrators for the other Kansas tribes, their courts also generally are open with exceptions like those of the Prairie Band Potawatomie Nation.
Judicial administrators may be contacted through main tribal offices as follows:
Iowa Tribe of Kansas and Nebraska
3345 B Thrasher
White Cloud, KS 66094
Phone: (785) 595-3258
Fax: (785) 595-6610
Kickapoo Tribe in Kansas
Horton, KS 66439
Toll Free: 1-877-864-2746
Phone: (785) 486-2131
Fax: (785) 486-2801
Prairie Band Potawatomie
16281 Q Road
Mayetta KS 66509-8970
Toll Free: (877) 715-6789
Phone - Tribal Court: (785) 966-2242 / Toll free: (866) 966-2242
Sac and Fox
305 N Main
Reserve, KS 66434
Phone: (785) 742-7471
Fax: (785) 742-3785
The Kansas Probate Code, K.S.A. 59-101, et. seq., specifies that proceedings and records are open to the public. K.S.A. 59-212(a)(1) provides that courts shall keep appearance dockets “under the name of the decedent, ward, conservatee, mentally ill person, or other person involved, all documents pertaining thereto and in the order filed.” Under K.S.A. 59-214, court records of probate proceedings are “open to inspection by all persons at all times.” However, for proceedings involving adoption and the care and treatment of mentally ill persons, courts must maintain “separate appearance dockets, not open to public inspection.” K.S.A. 59-212(a)(1).Compare
C. Competency and commitment proceedings
Commitment proceedings of “mentally ill persons” or “persons with an alcohol or substance abuse problem” are governed by the “care and treatment” acts in Kansas. K.S.A. 59-2945 et seq. governs treatment of mental illness, and K.S.A. 59-29b45 et seq. concerns alcoholism. Other than participants in the proceeding such as the judge, witnesses and counsel, hearings in such matters are closed to the extent desired by the parties. Anyone not necessary for the conduct of the proceedings may be excluded. K.S.A. 59-2959(c) (requests and orders for temporary custody in matters involving mental health); K.S.A. 59-2962 (hearings for mental evaluation of persons not subject to temporary custody orders); K.S.A. 59-2965(c) (trials regarding proposed commitments of persons with alleged metal illness); K.S.A. 59-29b59(c) (temporary custody in connection with alcohol or substance abuse); K.S.A. 59-29b62 (persons with an alcohol or substance abuse problem potentially subject to involuntary commitment); K.S.A. 59-29b65(c) (trials on petitions for involuntary commitment and care and treatment of persons with alcohol or substance abuse problems).
In Kansas, a person is “incompetent to stand trial” when he or she “is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense.” K.S.A. 22-3301(1). As competency in this context involves criminal proceedings, the public has access to the court file even when competency is at issue. However, “no statement made by the defendant in the course of any examination provided for by [law], whether or not the defendant consents to the examination, shall be admitted in evidence against the defendant in any criminal proceeding.” K.S.A. 22-3302(3). Further, under certain circumstances, the evaluation and treatment are conducted as a care and treatment case for mentally ill persons and therefore subject to those confidentiality requirements. K.S.A. 22-3303(1) and (2). Likewise, the records in cases where persons subject to commitment for being “sexually violent predators” pursuant to K.S.A. 59-29a01 are open except when predators are subject to an involuntary commitment as mentally ill persons.
Records in guardianship and conservatorship actions pursuant to K.S.A. 59-3050 et seq. are also open to public inspection. K.S.A. 59-212(a)(1).Compare
D. Attorney and judicial discipline
Kansas Supreme Court rules regarding attorney discipline provide that, when a complaint is made against an attorney, proceedings, reports, records of investigations and hearings are “private and shall not be divulged in whole or in part to the public.” However, the complaint can become public if a disciplinary committee reviews it and “finds by a majority vote that there is probable cause to believe there has been a violation of the Attorney’s Oath or the disciplinary rules of the Supreme Court.” See Kansas Judicial Branch, Rules Relating to Discipline of Attorneys, http://www.kscourts.org/rules/Rule-List.asp?r1=Rules+Relating+to+Discipline+of+Attorneys. The rules linked from this location are as follows:
202 Grounds for Discipline
203 Types of Discipline
204 Kansas Board for Discipline of Attorneys
205 Disciplinary Administrator
206 Lawyers Assistance Program
207 Duties of the Bar and Judiciary
208 Registration of Attorneys
208A Mandatory Disclosure of Professional Liability Insurance
211 Formal Hearings
212 Proceedings Before the Supreme Court
213 Refusal of Complainant to Proceed
214 Matters Involving Related Pending Civil or Criminal Litigation
216 Subpoena Power, Witnesses and Pretrial Proceedings
216A Compliance Examinations by the Disciplinary Administrator
217 Voluntary Surrender of License
218 Notice to Clients, Opposing Counsel, and Courts of Record Following Suspension, Disbarment, or Voluntary Surrender of License
220 Proceedings Where an Attorney is Declared or is Alleged to be Incapacitated
221 Appointment of Counsel to Protect Clients’ Interests
224 Additional Rules of Procedure
Under Kansas Supreme Court rules, complaints about judges and related investigations and records are closed to the public, unless a judicial review panel initiates formal proceedings. The rules provide for a hearing to be conducted after issuance of a formal complaint that specifies “in ordinary language the charges against the judge and the alleged facts upon which such charges are based.” See Rule 607, http://www.kscourts.org/Rules/Judicial_Conduct/Rule%20607.pdf, and Rule 611(b)(2), http://www.kscourts.org/Rules/Judicial_Conduct/Rule%20611.pdf, which appear in Kansas Judicial Branch, Rules Relating to Judicial Conduct, http://www.kscourts.org/rules/Judicial_Conduct.asp. The rules linked from this location are as follows:
601 Code of Judicial Conduct (Superseded)
601A Code of Judicial Conduct (Superseded)
601B Kansas Code of Judicial Conduct
CANON ONE: Integrity and Independence of Judiciary
CANON TWO: Appearance of Impropriety
CANON THREE: Extrajudicial Activities
CANON FOUR: Political Activity
602 Commission on Judicial Qualifications
603 Secretary of the Commission and Panels
605 Powers of Commission
605A Powers of Hearing Panel
610 Letters of Caution and Informal Advice
611 Cease and Desist - Formal Proceedings
613 Setting for Hearing
616 Procedural Rights of Judge
617 Amendments to Notice or Answer
618 Extension of Time
619 Hearing Additional Evidence
620 Hearing Panel Disposition Or Recommendations
621 Temporary Suspension
622 Record of Hearing Panel Proceedings
623 Proceedings before the Supreme Court
625 Compensation and Expenses - Commission
626 Other Fees and Expenses
627 Additional Rules
640 Judges Assistance Committee
650 Judicial Ethics Advisory Panel
Kansas Judicial Ethics Advisory Opinions
651 Limitations on Judicial Service
E. Immigration proceedings
F. Other proceedings
X. Restrictions on participants in litigation
A. Media standing to challenge third-party gag orders
Kansas courts have not settled the issue of whether or when media have standing to challenge third-party gag orders. In 2016, media organizations attempted to gain a ruling on the issue but were unsuccessful. The attempt was made in connection with a high-profile case in Great Bend, Kansas, State v. Villega, Case No. 2015 CR 388, District Court of Barton County, Kansas (2015). The case resulted from a fatal shooting in a Great Bend residence in 2015. Three charged in Great Bend homicide case, KSN (December 3, 2015), https://www.ksn.com/news/local/three-charged-in-great-bend-homicide-case/1023885090. On January 8, 2016, the judge granted a defense request for a gag order on trial participants. In response, the Great Bend Tribune, along with the two media organizations—the Kansas Press Association and the Kansas Association of Broadcasters—moved to intervene to challenge the gag order. They argued that it was unconstitutionally broad. They asserted that it “completely prohibits the parties, all law enforcement, all court personnel, court reporters, and all witnesses and potential witnesses from making any comments concerning this case.” The Great Bend Tribune’s Second Motion to Intervene to Intervene and for Relieve from Protective Order Restricting Extrajudicial Comments, Case No. 2015 CR 388 (Jan. 15, 2016).
In claiming standing to intervene, the movants stated that the gag order damaged the media’s ability to gather and report news about proceedings in State v. Villega. Because no Kansas precedent was directly on point, they relied on such cases such as Journal Publishing v. Mechem, 801 F.2d 1233 (10th Cir. 1986), in which a newspaper challenged a judge’s prohibition of post-trial interviews with jurors. In that case, the Tenth Circuit said that a newspaper had standing because the paper alleged that the judge’s order “impeded its ability to gather news, and that impediment is within the zone of interest sought to be protected by the first amendment.” Mechem, 801 F.2d at 1235.
The movants in State v. Villega, in claiming standing to intervene, also cited an array of decisions by the U.S. Supreme Court and lower courts. Among precedents movants cited was Stephens v. Van Arsdale, 608 P.2d 972 (Kan. 1980). In that case, the Kansas Supreme Court held that a newspaper and report had standing to challenge a court clerks’ denial of access to official court records because the denial “impair[ed] their ability to carry on their business, the collection and dissemination of information.” Van Arsdale, 608 P.2d at 979. The movants also cited Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), in which the state supreme court held that the media had standing to challenge a court order to seal a record or close a proceeding, even in the absence of a statute allowing such intervention. Owens, 27 P.3d at 883.
Nevertheless, the judge in State v. Villega denied the motion to intervene, and the Tribune, with the two state media organizations, petitioned the Kansas Supreme Court for a writ of mandamus. They requested that the state supreme court direct the judge to set aside his gag order on trial participants. However, the state supreme court responded by issuing a perfunctory order that comprised just four words: “Denied on present showing.” The Great Bend Tribune, et al. v. Swaty, Case No. 115304, Kansas Supreme Court (May 20, 2016).
More thorough consideration was given to the issue of standing in 1998 by a U.S. District Court judge in Kansas. He analyzed the conditions under which the media may intervene in federal court. The media sought to object to a gag order that he had issued against trial participants, and the judge acknowledged that the media had a right to intervene under certain conditions. Koch v. Koch Industries, Inc., 6 F. Supp. 2d 1185, 1188 (D. Kan. 1998), aff’d, 203 F.3d 1202 (10th Cir. 2000). He said that, in challenging a gag order, the media “must allege an injury in fact—that the court’s order impeded their ability to gather news and ‘that impediment is within the zone of interest sought to be protected by the first amendment.”’ Koch, 6 F. Supp. 2d at 1190 (quoting Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir. 1986)). In addition, he indicated that the media’s standing to challenge a gag order banning advertising by parties to the case would depend on the ban’s impact on their financial interest.
The judge emphasized First Amendment protection for press freedom, saying:
[A]ny inhibitions against news coverage of a trial carry a heavy presumption of an unconstitutional prior restraint. If a court order burdens constitutional rights and the action proscribed by the order presents no clear and imminent danger to the administration of justice, the order is constitutionally impermissible. A court may impose a prior restraint on the gathering of news about one of its trials only if the restraint is necessitated by a compelling governmental interest. Moreover, the court must narrowly tailor any prior restraint and must consider any reasonable alternatives to that restraint which have a lesser impact on first amendment rights. These requirements apply for criminal trials as well as civil trials.
Koch, 6 F. Supp. 2d at 1188–89 (citations omitted).
The media argued that the gag order impaired their First Amendment interest in gathering and reporting news and engaging in commercial speech and also prevented them from gaining revenue from advertising sales. The judge, however, ruled that the media did not have standing to intervene, although he made his decision only after balancing “the parties’ and public’s interest in a fair trial against the competing interest in freedom of speech.” Koch, 6 F. Supp. 2d at 1189. He found that the media lacked standing, in part, because the parties to the litigation had requested the gag order and said they did not want to talk to reporters. The media has no standing to intervene, he concluded, if the affected parties are not willing to speak publicly and be sources of news. He also decided to dissolve his ban on advertising.Compare
B. Gag orders on the press
The Kansas Supreme Court firmly declared its opposition to prior restraints against the media in a case that originated in 1993 in Atchison, Kansas. State v. Alston, 887 P.2d 681 (Kan. 1994). A newspaper reporter was attending a pre-trial criminal hearing in a local courtroom. The hearing was open to the public, and the reporter’s presence was ordinary. Nothing portended the confrontation that was about to occur.
As the reporter watched, the judge considered a defense motion to suppress certain evidence. The defense attorney argued that the prosecution should be barred from using or discussing the defendant’s criminal record or outstanding arrest warrants. After granting the motion, the judge asked whether any other matter needed attention. The attorney then pointed out the presence of the reporter, who worked for the Atchison Daily Globe, and expressed concern that the newspaper might publish a report about the hearing. The judge immediately ordered the reporter to publish neither the defendant’s criminal history nor even the existence of the judge’s order itself.
The Globe, however, defied the order, publishing a report about what had happened in the courtroom. For its defiance of the gag order, the Globe received a contempt citation, but the newspaper successfully appealed. In Alston, the state supreme court reversed the gag order and the contempt citation. The Kansas Supreme Court recognized that “those who see and hear what transpired in an open courtroom can report it with impunity,” and “once a public hearing has been held, what transpired there could not be subject to prior restraint.” Alston, 887 P.2d at 688.
At the same time, the Kansas Supreme Court embraced a line of precedent that preserved the media’s defense against “transparently invalid” gag orders. Alston, 887 P.2d at 691 (citing In re Providence Journal Co., 820 F.2d 1342, 1347–48 (1st Cir. 1986), modified on reh’g, 820 F.2d 1354 (1st Cir. 1987)). The Globe was subject to the general rule that persons must obey a judicial order even if they believe it is unconstitutional. The state supreme court said:
In this case, the . . . order was transparently unconstitutional. The trial court failed to make the requisite … findings. The [newspaper had based its news report on information that was available from] the court’s records and in open court prior to the gag order. The order was issued without a full and fair hearing with all the attendant procedural protection.
Alston, 887 P.2d at 690.
The supreme court found that the Globe had disobeyed the gag order in good faith. According to the court, “[o]nly where timely access to an appellate court is not available can the newspaper publish and then challenge the constitutionality of the order in contempt proceedings.” Alston, 887 P.2d at 621.Compare
C. Gag orders on participants
When Kansas judges issue gag orders against trial participants, they may do so with reference to the Kansas Rules of Professional Conduct for attorneys, http://www.kscourts.org/rules/Rule-List.asp?r1=Rules+Relating+to+Discipline+of+Attorneys. Of particular importance is Rule 3.6(a), which states:
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Rule 226/3.6 Advocate: Trial Publicity, http://www.kscourts.org/rules/Rule-Info.asp?r1=Rules+Relating+to+Discipline+of+Attorneys&r2=29
Also noteworthy is Rule 3.8(f), restricting comment by prosecutors. It states:
except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
Rule 228/3.8 Advocate: Special Responsibilities of a Prosecutor, http://www.kscourts.org/rules/Rule-Info.asp?r1=Rules+Relating+to+Discipline+of+Attorneys&r2=27
An illustrative gag order against trial participants was issued in 2010 by a Barton County, Kansas, judge in a high-profile murder case. The judge ordered:
that counsel for the state, the defense, their respective agents and employees and law enforcement personnel involved in this case shall make no extra-judicial statement that a reasonable person should know will have a substantial likelihood of materially prejudicing this criminal proceeding. The following matters, in particular, shall not be the subjects of extra-judicial statements concerning;
- The character, credibility, reputation or criminal record of the accused or any potential witness in this case or the expected testimony of any witness;
- Alleged criminal or bad acts whether charged or uncharged;
- The possibility of a plea of guilty to the offense;
- The existence of any written or oral statement given by the defendant or any witness or the defendant’s failure or refusal to give a statement;
- The result of any examination or test, or the nature or identity of any physical evidence to be presented;
- Any opinion as to the guilt or innocence of the defendant; and
- Any information likely to be inadmissible at trial, as evidence of such would create a substantial risk of prejudicing an impartial trial.
State v. Longoria, District Court of Barton County, Kansas, Order, Case No. 2010 CR 231 (Sept. 10, 2010).
The judge specified that the following kinds of statements were permissible:
- The general nature of the claim or defense;
- Information contained in a public record;
- That an investigation continues in progress;
- The identity of persons involved in the case;
- Scheduling issues;
- Results of hearings or trials;
- Requests for assistance in obtaining evidence and information necessary thereto;
- The identity, residence, occupation and family status of the accused;
- The fact, time and place of arrest; and
- The identity of investigating and arresting officers and agents.
Longoria, Barton County, Case No. 2010 CR 231.
Gag orders against trial participants have received relatively little attention from Kansas appellate courts. In one case, State ex rel. Tomasic v. Cahill, 567 P.2d 1329 (Kan. 1977), the Kansas Supreme Court, while upholding a trial court’s refusal to impose a gag order against the media, observed, without objection, that the trial court had imposed a gag on witnesses. Cahill involved an ouster of two members of a city utilities board on grounds that they had mishandled certain financial matters. The state supreme court upheld the ouster and said that the media were “quite properly permitted to report proceedings which took place in open court. The need for the public to know what is going on in an ouster proceeding is substantial, and certainly outweighs the remote possibility of prejudice to parties in this civil proceeding.” Cahill, 567 P.2d at 1336.
Federal courts have given significant attention to the standards under which gag orders appropriately may be issued against trial participants. In United States v. Walker, 890 F. Supp. 954 (D. Kan. 1995), a defendant had been charged with cocaine possession, and he requested an “order directing the United States Attorney, his assistants, law enforcement officers, and any other persons associated with the . . . case to refrain from making any extrajudicial statements about this case.” Walker, 890 F. Supp. at 956. The defendant said a gag was necessary because publicity “indicating that he was the leader of the Topeka Black Gangster Disciples gang jeopardized his ability to obtain a fair trial.” Walker, 890 F. Supp. at 956. The judge denied the request, however, saying:
Though the speech of an attorney participating in judicial proceedings may be subjected to greater limitations than could constitutionally be imposed on other citizens or on the press, the limitations on attorney speech should be no broader than necessary to protect the integrity of the judicial system and the defendant’s right to a fair trial. This Court has stated that before a district court issues a blanket prior restraint, it must, inter alia, “explore whether other available remedies would effectively mitigate the prejudicial publicity,” and consider “the effectiveness of the order in question” to ensure an impartial jury.
Walker, 890 F. Supp. at 957.
The court noted that less restrictive alternatives to an injunction against speech include such possibilities as a change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors. Walker, 890 F. Supp. at 957.
The same judge imposed a gag order with unusually broad scope against trial participants in a high-profile 1998 civil case, Koch v. Koch Industries, Inc., 6 F. Supp. 2d 1185 (D. Kan. 1998), aff’d, 203 F.3d 1202 (10th Cir. 2000). As the time for trial drew near, the judge issued a gag order that: prevented any parties, or their agents or representatives, “from contacting or polling, for any purpose, any person listed as a prospective juror”; precluded “all parties, counsel and witnesses from making extrajudicial statements to the news media”; forbade any party, or any business, association, entity or commission controlled by a party, from advertising through newspapers, radio, or television in the seventeen counties within the court’s jurisdiction; and required prospective jurors to make “every effort” to avoid reading newspaper or magazine articles, listening to any radio programs, or viewing any television programs that could relate to the case. Koch, 6 F. Supp. 2d at 1187.
The judge denied a motion by the media to intervene and object after he issued the gag order. Although he acknowledged that a judge should not impose a prior restraint on speech without first conducting a hearing, he characterized Koch as an “atypical” case. He said he had raised the subject of the gag order in open court during a status conference. Koch, 6 F. Supp. 2d at 1189–90. He further stated:
[A]ll parties agreed that the court had provided the relief that they had requested. Lead counsel for both sides expressed great enthusiasm for the order entered by the court, as the news media had previously been playing one side off the other in an effort to pry information from the litigants or their counsel. In short, all litigants eschewed any desire to talk with the news media about this case.
Koch, 6 F. Supp. 2d at 1190.Compare
D. Interviewing judges
Kansas judges may agree to be interviewed about the judicial system. Rules of judicial conduct include a comment that: “Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking. . . . In addition, judges are permitted and encouraged to engage in educational . . . activities.” Rules Related to Judicial Conduct / Kansas Canons of Judicial Conduct / Canon 3, Rule 3.1, (comment), http://www.kscourts.org/rules/Judicial_Conduct.asp. The Kansas Judicial Branch’s public information director is available to answer questions about contacting and interviewing judges. See Appellate Court Contacts, http://www.kscourts.org/court-administration/general-contact-information/default.asp.
Judges readily have participated in educational programs on courts and media. For example, the annual meeting of state judges on June 18, 2015, in Overland Park, Kansas, included panel discussions about how judges respond to media requests for access to probable cause affidavits and about media-judicial relations generally.
Still, judges generally take a firm position that they must not comment on a pending case. They are bound by Kansas Rules Relating to Judicial Conduct that prohibit them from making comment that “might reasonably be expected to affect” the outcome of a pending proceeding “or impair its fairness.” The rules also prohibit judges from making “any nonpublic comment that might substantially interfere with a fair trial or hearing.” Court personnel under the judges’ control also are subject to the rule. Judges, however, are permitted to comment publicly in the course of performing their official duties, and they publicly may explain court procedures. See Rules Relating to Judicial Conduct /Kansas Canons of Judicial Conduct, Canon 2 / Rule 2.10(a): http://www.kscourts.org/pdf/Code%20of%20Judicial%20Conduct.pdf.Compare
XI. Other issues
A. Interests often cited in opposing a presumption of access
Under Kansas Supreme Court Rule 1001, a trial judge must prohibit photographing or audio recording of a participant in a court proceeding who requests the prohibition and who is “a victim or witness of a crime, a police informant, an undercover agent, or a relocated witness.” Kan. Sup. Ct. R. 1001(e)(7), Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Kansas Supreme Court Rule 1001 requires that a trial judge prohibit photographing or audio recording of a court proceeding that involves trade secrets. Kan. Sup. Ct. R. 1001(e)(7), Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
In addition, a court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense” and require “that a trade secret or other confidential research, development or commercial information not be revealed or be revealed only in a specified way.” K.S.A. 60-226(c)(1)(G).
The Kansas Open Records Act (KORA), which is followed by the Kansas Judicial Branch, exempts certain security-related matters from disclosure. One exemption is for records
of emergency or security information or procedures of a public agency, or plans, drawings, specifications or related information for any building or facility which is used for purposes requiring security measures in or around the building or facility or which is used for the generation or transmission of power, water, fuels or communications, if disclosure would jeopardize security of the public agency, building or facility.
Another exemption is for records that, if disclosed, “would pose a substantial likelihood” of jeopardizing energy, water, transportation and other systems, as well as private persons and property. K.S.A. 45-221(a)(45). The purpose of the exemption is to prevent disclosure of measures “that protect against criminal acts intended to intimidate or coerce the civilian population, influence government policy by intimidation or coercion or to affect the operation of government by disruption of public services, mass destruction, assassination or kidnapping.” K.S.A. 45-221(a)(45).
A Kansas rape shield law provides for exclusion of certain evidence about sex crime victims in trials. K.S.A. 21-3525. The Kansas Supreme Court has said the law was
aimed at eliminating a common defense strategy of trying the complaining witness rather than the defendant. The result of the strategy was harassment and further humiliation of the victim as well as discouraging victims of rape from reporting the crimes to law enforcement authorities.
State v. Williams, 580 P.2d 1341, 1343 (Kan. 1978).
A Kansas Supreme Court rule requires identification of a sex crime victim only by initials, or given name and last initial in “all motions, briefs, opinions, and orders of the appellate court.” Kan. Sup. Ct. R. 7.043(c), Reference to Certain Persons, http://www.kscourts.org/rules/Appellate_Rules/Rule%207.043.pdf, which appears in Rules Adopted by the Supreme Court/General and Administrative, http://www.kscourts.org/rules/Appellate_Court.asp.
In addition, under Kansas Supreme Court Rule 1001, a trial judge must prohibit photographing or audio recording of a participant in a court proceeding who requests the prohibition and who is “a victim or witness of a crime.” Kan. Sup. Ct. R. 1001(e)(7), Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
A Kansas law provides that, after a hearing, a judge may deny access to court proceedings or records on the basis of an identified “privacy interest.” K.S.A. 60-2617(d). In addition, the Kansas Open Records Act authorizes withholding of information if it “would constitute a clearly unwarranted invasion of personal privacy.” K.S.A. 45-221(a)(30). However, in Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), the Kansas Supreme Court said that trial judges need to weigh the public interest in openness against any asserted interest in closure of proceedings or records. The state supreme court said that trial judges should have the
benefit of argument on the question of closure by an advocate of First Amendment and common-law interests. Such an argument would not necessarily be made by the State or the defense and might otherwise go entirely unnoticed. The news media may identify, or at least be the strongest proponent of an argument that there are…“reasonable alternative means” to closure that would avoid the prejudicial effect on the defense or prosecution of the dissemination of information contained in the record or revealed during a proceeding.
Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881, 883 (Kan. 2001).
A Kansas Supreme Court rule, 7.043, on record-keeping by appellate courts says in section (a) that it is designed to limit identification of persons “to avoid unnecessary trauma and unwarranted stigma from publicity inherent in an appellate proceeding and to maintain statutory requirements of confidentiality.” Section (b) requires that a child not be fully identified in cases brought under the codes for care of children or juveniles and in cases that involve adoption. Section (d) requires that a motion, brief, or opinion or order of the appellate court “refer to a juror or member of the venire by initials only, by juror number, or by given name and last initial.” Kan. Sup. Ct. R. 7.043, Reference to Certain Persons, http://www.kscourts.org/rules/Appellate_Rules/Rule%207.043.pdf, which appears in Rules Adopted by the Supreme Court/General and Administrative, http://www.kscourts.org/rules/Appellate_Court.asp.
Also, a Kansas Supreme Court Rule states that juror questionnaires are not a public record. See Kan. Sup. Ct. R. 167, Use of Juror Questionnaire, http://www.kscourts.org/rules/District_Rules/Rule%20167.pdf, which appears in Kansas Judicial Branch, Rules Adopted by the Supreme Court/Rules Relating to District Courts/Trials and Related Matters, http://www.kscourts.org/rules/District_Court.asp.Compare
B. Cameras and other technology in the courtroom
The Kansas Supreme Court historically has been accepting of the media’s use of cameras and other technologies to cover courts. In State v. McNaught, 713 P.2d 457 (Kan. 1986), the state supreme court reviewed how it had experimented with allowing media to use cameras in Kansas courtrooms beginning in 1981. In McNaught, cameras were an issue, because the appellant claimed that he had been convicted of a crime because of prejudicial pre-trial publicity. The supreme court rejected the claim, however, saying the appellant had “not shown that his rights were adversely affected by media coverage in the courthouse during the preliminary hearing, nor has he presented evidence that any individual juror’s ability to judge the defendant fairly was influenced by media coverage prior to trial.” McNaught,713 P.2d at 466.
Media coverage of Kansas judicial proceedings now is addressed by Kansas Supreme Court Rule 1001. A preface states that the rule applies to “various electronic devices including phones, tablets, and other wireless communication devices” in courtrooms. The preface includes an acknowledgement “that electronic devices have become a necessary tool for court observers, journalists, and participants.” According to the preface, courts “should champion the enhanced access and the transparency made possible by use of these devices.” At the same time, however, the preface states that courts must take care to protect “the integrity of proceedings within the courtroom.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf. Cameras have been allowed in Kansas courtrooms since 1981. Eric Weslander,“48 Hours” Sets Up for Murray Trial, Lawrence Journal-World (February 16, 2005).
Kansas Supreme Court Rule 1001 on media coverage applies to all types of judicial proceedings, and it prohibits use of laptops, cellphones and other electronic devices unless permitted by the presiding judge or justice. Rule 1001(e) specifies that the judge or justice may permit the “news and educational media and others” to use electronic devices. The permissible users are individuals “such as a publisher, editor, reporter, or other person employed by a newspaper, magazine, news wire service, television station, or radio station who gathers, receives, or processes information for communication to the public, or an online journal in the regular business of newsgathering and disseminating news or information to the public.” Those who want to use a device “must request specific permission in advance,” if they want “to record and transmit public proceedings, including real-time coverage, in Kansas courts.” In section (e)(2), the rule states that one who plans to request permission “to bring cameras, recording equipment, or other electronic communication devices into the courtroom” is required to give a week’s notice, although a judge may waive the requirement “for good cause.” According to section (e)(2), when individuals receive permission to use electronic devices, they may record video or audio, take photographs or otherwise engage in electronic communications “only for the purpose of education or news dissemination.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Kansas Supreme Court Rule 1001 does not impose particular limits on use of electronic devices to video-record or photograph evidentiary exhibits, although a judge has discretion to prescribe limits. Under section (e)(3), the rule makes clear that the judge has “power, authority, or responsibility to control the proceedings.”
The rule includes restrictions on where devices may be used in a courtroom. According to section (e)(13), audio-visual equipment and operators “ordinarily should be restricted to areas open to the public.” They must stay within an area authorized by the judge and “may not move about the courtroom for picture-taking purposes during the court proceeding.”
In addition, section (e)(4) states: “Audio pickup and audio recording of a conference between an attorney and client, or among cocounsel, counsel and opposing counsel, or among attorneys and the judge are prohibited regardless of where conducted.” However, the rule does not prohibit photographing of such a conference. Section (e)(5) prohibits “[f]ocusing on and/or photographing materials on counsel tables or in designated areas.”
Section (e)(12) applies to pool coverage of court proceedings. The rule states that: “When more than one television station, still photographer, or audio recorder desires to cover a court proceeding,” a court-appointed coordinator will designate a pool photographer and audio recorder. In case of a dispute about the designation and operation of a pool, “no audio or visual equipment will be permitted at the proceeding.” A representative of the pool is to receive requests for copies of audio recordings, video, or photographs and to supply copies to the media at no more than actual cost. Participation in a pool is not required of individuals “who provide text accounts via approved electronic devices.”
Various provisions of the rule apply to electronic devices that can be used to take photographs or audio- or video-record witnesses or other participants in proceedings. Section (e)(3) provides that a judge’s “authority to disallow possession of electronic devices at a proceeding or during the testimony of a particular witness extends to any person” who is subject to the rule.
Section (e)(6) Prohibits photographing of jurors. The rule states that: “In a courtroom in which photography is impossible without including the jury as part of the unavoidable background, photography is permitted as long as no close-ups identify individual jurors.”
Under section (e)(7), a trial judge “must prohibit the audio recording and photographing of a participant in a court proceeding if the participant so requests and (a) the participant is a victim or witness of a crime, a police informant, an undercover agent, or a relocated witness or juvenile, or (b) the hearing is an evidentiary suppression hearing, a divorce proceeding, or a case involving trade secrets. Subject to a court directive to the contrary, the news media may record and photograph a juvenile who is being prosecuted as an adult in a criminal proceeding as authorized by K.S.A. 38-2347.”
Section (e)(9) prohibits photographing or any recording of a criminal defendant who is in restraints while being escorted to or from a court proceeding.”
In addition, section (e)(9) imposes some limits on use of electronic devices outside of the courtroom. The rule prohibits recording of an interview for electronic transmission, including broadcast, “in a hallway immediately adjacent to a courtroom entrance if a passageway is blocked or a judicial proceeding is disturbed thereby.” The rule also prohibits taking photographs “or other recording through a window or open door of a courtroom.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Under Rule 1001(e)(15), a judge “may restrict operation of cameras or electronic devices which emit distracting sounds during court proceedings.” The rule recommends use of a “quieting device” with a still camera that is not designed to operate silently.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Although Kansas Supreme Court Rule 1001 on media coverage of court proceedings does not mention Webcasting specifically, a judge may allow it the same as television broadcasting. Oral arguments before the Kansas Supreme Court are streamed in real time. See Kansas Supreme Court Live and Archived Oral Arguments, http://www.kscourts.org/kansas-courts/supreme-court/arguments.asp. Webcasting of at least two trials had been allowed by Kansas District Court judges as of October 2013, according to Ron Keefover, former information-education officer for the Kansas Judicial Branch. One trial was for a defendant charged with murder and arson in Kingman County, and the other was a murder case in Barton County. Hurst Laviana, Brett Seacat sentenced to life for wife’s murder, The Wichita Eagle (August 5, 2013), https://www.kansas.com/news/local/crime/article1120305.html, and Deb Farris, Adam Longoria found guilty of capital murder, KAKE-TV (April 6, 2012).
Tweeting from Kansas courtrooms has been allowed for some time. A federal district judge permitted a Wichita Eagle reporter to report via Twitter in a case in early 2009. Paul Farhi, The Twitter Explosion, American Journalism Review (April/May 2009), http://ajrarchive.org/article.asp?id=4756. Other judges followed suit, although not always without difficulty. For example, in 2012, a state district judge declared a mistrial after a reporter inadvertently live-tweeted photos that included the profile of a juror. Rachel Bunn, Reporter’s tweeted photo of juror leads judge to declare mistrial in murder prosecution, Reporters Committee for Freedom of the Press (April 16, 2012), https://www.rcfp.org/reporters-tweeted-photo-juror-leads-judge-declare-mistrial-murder-pr/.Compare
C. Tips for covering courts in the jurisdiction
For an overview of the Kansas judicial system, see Kansas Courts on the state Judicial Branch’s website, at: http://www.kscourts.org/kansas-courts/general-information/default.asp. A chart, Kansas Court System, sets forth the structure and jurisdiction of the courts and may be found at http://www.kscourts.org/pdf/ctchart.pdf.
Contact information for Kansas district courts is available at http://www.kscourts.org/kansas-courts/general-information/contacts.asp. Guidance for contacting municipal courts is at http://www.kscourts.org/kansas-courts/municipal-courts/default.asp.
Guidelines for requesting transcripts, cases files and other court records at http://www.kscourts.org/rules-procedures-forms/open-records-procedures/default.asp.
Procedures for coverage of high-profile cases historically have been set up on an ad hoc basis, with no set protocol, according to Ron Keefover, former Kansas Judicial Branch information-education officer. Information about arrangements for coverage of a case may be requested from either or both of the following:
Lisa Taylor, Public Information Director
301 SW 10th Avenue, Room 337
Topeka, Kansas 66612-1507
Phone: (785) 296-4872
Fax: (785) 296-7076
Office of Judicial Administration
301 SW 10th Avenue, Room 337
Topeka, Kansas 66612-1507
Phone: (785) 296-2256
Fax: (785) 296-7076
When in courtrooms to cover proceedings, members of the media must comply with Kansas Supreme Court Rule 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf. The rule requires that, when in a courtroom, members of the media have permission from the judge to use electronic devices such as laptops while covering proceedings.
In courtrooms, according to Rule 1001, judges are responsible for the “integrity” of proceedings,” and they maintain control over all activities in the courtroom and to some extent outside of it. In sections (c)(1) and (2), Rule 1001 generally allows persons in the courtroom to possess laptops, cellphones and other devices, as long as they are turned off and put away out of sight. Possession of the devices is a qualified privilege, though. Under section (e)(3), a judge is authorized to disallow possession by any observer during a proceeding. Moreover, persons are prohibited from activating and using the devices unless specifically permitted by the judge under sections (e)(1) and (2). Section (d)(2) provides for confiscation of a device that is used in a courtroom without permission. Also see Kan. Sup. Ct. R. 161, Courtroom Decorum, http://www.kscourts.org/rules/District_Rules/Rule%20161.pdf, which appears in Rules Adopted by the Supreme Court/Rules Relating to District Courts. http://www.kscourts.org/rules/District_Court.asp.
A primary source of information about Kansas courts is the state’s Judicial Branch website, http://www.kscourts.org. The website includes the following resources:
- Justice in Kansas (a video about the structure and function of the Kansas Judicial Branch), http://www.kscourts.org/programs/educational-services/Justice-in-Kansas/default.asp.
- You and the Courts of Kansas (an online pamphlet about the state’s court system), http://www.kscourts.org/kansas-courts/general-information/you-and-the-courts/default.asp.
- Frequently Asked Questions, http://www.kscourts.org/kansas-courts/general-information/faq.asp.
- Kansas Supreme Court and Kansas Court of Appeals Opinions, http://www.kscourts.org/Cases-and-Opinions/opinions/default.asp.
- Dockets and Oral Arguments (for the appellate courts), http://www.kscourts.org/Cases-and-Opinions/dockets/default.asp.
- District Court Contacts, http://www.kscourts.org/kansas-courts/general-information/contacts.asp.
- Appellate Court Contacts, http://www.kscourts.org/kansas-courts/general-information/appellate-court-contacts.asp
- Kansas Courts Electronic Filing, http://www.kscourts.org/Cases-and-Opinions/e-filing/default.asp.
- Canons of Judicial Conduct, http://www.kscourts.org/Kansas-Courts/Supreme-Court/Orders/2009/2009sc006.pdf
- Kansas Rules of Professional Conduct, http://www.kscourts.org/rules/Rule-List.asp?r1=Rules+Relating+to+Discipline+of+Attorneys