By Grace Hills, Kansas Reflector
TOPEKA — A new Kansas law withheld information from the public in a recent Linn County criminal case, raising concerns about the balance between safely executing an arrest warrant and the First Amendment.
Before Senate Bill 204 took effect in July, cases including arrest warrants — which have the name of the offender, a list of criminal charges and name of the victim — were public record through the state’s online court management system. Now, cases are sealed until the arrest warrant is executed or the request for the warrant is denied.
The law also mandates that all subpoenas in a criminal case be sealed in perpetuity, unless the court finds that unsealing a subpoena is in the “interest of justice.”
Emily Bradbury, executive director of the Kansas Press Association, said the new law conflicts with the public’s right to know.
“While we are very sensitive to the concerns of law enforcement, we feel like Senate Bill 204 went way too far in actually closing the entire case,” Bradbury said. “We don’t feel like the concerns of law enforcement override the public’s need to know what is happening with certain court cases.”
Bradbury said the new law restricted journalists’ access to court records regarding a recent Linn County case in which a 13-year-old boy was killed by his neighbor’s dog and his body was abandoned. The Kansas City, Kansas, Police Department posted about it on social media.
“We knew there was a case because it had been released to media, and the clerk was like, ‘I can’t even tell you there’s a case,’ ” Bradbury said. “There’s a lot of confusion. We don’t feel like it’s being applied consistently, and we feel like it runs afoul to the already existing law of the public’s right to know.”
The bill was passed unanimously by the House and Senate. The only opposing testimony was from the Kansas Bail Agents Association, which didn’t mention First Amendment concerns.
Sen. Doug Shane, a Republican from Louisburg, sat on the Senate Judiciary Committee when the bill was heard. He said the bill was well intentioned.
“The question then becomes the practical ramifications,” Shane said in an interview. “It sounds like with the story from Linn, which is just a horrible story, were there unintended consequences in how the bill was drafted? Was there an interpretation in Linn County of the law that we think maybe doesn’t match with the verbiage of the bill or the intent of the bill?
“Is there clarification that’s needed — either through statute, do we need to come with a new bill to address that? To make sure that our legislative intent aligns with what’s happening in the real world?”
The bill was introduced by lobbyist Jeff Wageman on behalf of the Kansas County and District Attorneys Association.
Johnson County District Attorney Steve Howe testified the new law mitigates the risk of a defendant finding out about an arrest warrant before it is executed.
“This publication of charges also puts law enforcement at risk by giving the offender notice of the case and the warrant prior to their arrest,” Howe wrote in his testimony. “It also places the public at risk from individuals who will flee from police because of the warrant, which results in many traffic fatalities throughout the State.”
Howe wrote that making arrest warrants public record put victims of violence at risk “by allowing the offender to have the ability to intimidate, hurt or kill victims prior to their arrest.” He didn’t provide an example.
Howe’s office declined to comment for this story.
Four domestic violence prevention groups testified along similar lines — citing protection of victims as their reason for support. Heidi Wooten, president of Safehome women’s shelter in Johnson County, testified that a Safehome participant’s new address was revealed to her abusive ex-husband in a public subpoena.
Michelle McCormick, the executive director of the Kansas Coalition Against Sexual and Domestic Violence, submitted neutral testimony. She requested the bill “fix any loopholes currently in the court case management system.”
“There’s going to be things that come up. Every court case is going to have its own unique circumstances,” said Michael McGraw, communications coordinator for the coalition, in an interview. “There is never going to be a circumstance unfortunately where we can guarantee 100% of the time that a survivor is not going to have their information shared in a court proceeding.”
McGraw referred to the statistic that only 40% of domestic violence survivors bring their cases to court.
“It’s obviously a catch-22,” McGraw said. “On one hand prosecutors and law enforcement will tell you they wish more people came forward, but they also can not guarantee protection throughout the process.”
The Kansas Press Association is in the beginning stages of reaching out to supporters of the new law to see if they would be open to a compromise — one that, in Bradbury’s opinion, would continue to protect law enforcement and domestic violence victims while maintaining journalists’ access to public records.
KPA suggests changing the law so the cases are accessible from the courthouses, but still not online.
“Hopefully we can get a legislative change going for this session,” Bradbury said. “That’s our goal — to get this change as soon as possible, if we can come to an agreement.”
McGraw said the coalition is “always open to conversations.”
“We leave it to the courts to balance First Amendment concerns and the pursuit of justice,” McGraw said. “What we can do is advocate on behalf of the survivor.”
Sen. Scott Hill, a Republican from Abilene who serves on the Senate Judiciary Committee, said he is “more than willing to relook at stuff.”
“It’s pretty typical that when legislation gets passed we find instances where it has to be cleaned up a little bit,” Hill said. “I certainly advocate that the press should have access to things that are important for the community to know about. It’s just you have to weigh that with protecting.”
