With district court finding that affidavit requests are not moot under KSA 22-2302, LJW seeks dismissal of mandamus action

mandamus dismissalThe Lawrence Journal-World has asked the Kansas Supreme Court for a final disposition of an appeal by the newspaper from denial of its requests for probable cause affidavits related to two rape cases last year in Douglas County.  The disposition sought by the Journal-World, if granted by the Supreme Court, would affirm a lower court finding that a request for an affidavit remains valid even if the underlying criminal case has been dismissed.

The Journal-World initially requested the affidavits on October 10, 2014.   However, Judge Kay Huff denied the request and sealed the affidavits on October 23.  The Journal-World then intervened in the underlying criminal cases to challenge Judge Huff’s sealing of the affidavits.  On December 19, however, she refused to unseal them and said the newspaper’s request for the affidavits was moot, because the Douglas County district attorney had dismissed the charges. The Journal-World strongly disagreed with the idea that dismissal of a criminal case nullifies a request for an affidavit related to that case. On December 29, the newspaper petitioned the Supreme Court for a writ of mandamus. The Journal-World’s purpose was to gain an order from the Supreme Court requiring Judge Huff to act in strict compliance with applicable law and reconsider her sealing of the requested affidavits. The Supreme Court then issued a notice on February 19, 2015, requiring the judge to respond to the Journal-World’s mandamus petition.

As mentioned in this space a little over a month ago, Judge Huff issued a scheduling order dated February 27, 2015 that included a hearing set for April 10, 2015. At the hearing, she planned to hear arguments and rule on whether to maintain her seal on the affidavits. In that February 27 order, the judge found that the court “agrees that Intervenor’s interest is not moot and survives the dismissal of the criminal charges.”

Then, on March 4, 2015, the district court issued a supplemental scheduling order that reminded the participants that pursuant to “requests for expungement, these cases were ordered to be sealed….(and) the clerk has done so.” In fact, the cases were expunged subsequent to the filing of the mandamus action. The order further provided that the court “contemplates the hearing will be closed, since the hearing will address sealed matters.”

Given that the arrest records in these cases were expunged, thus preventing the disclosure of “the arrest or any information related to the arrest” under K.S.A. 22-2410(g), the probable cause affidavits no longer legally exist for the purpose of the Journal-World’s requests in each case.  As result, the Journal-World filed a motion to withdraw the reqeusts on March 10, 2015.

Also in that filing, the Journal-World opposed the March 4, 2015 order insofar as it provided that the court “contemplates that the hearing will be closed.” The Journal-World said the judge’s contemplation of a closed hearing should be set aside pursuant to K.S.A. 60-260, and that if the hearing were to take place, it should be open to the public and accompanied by appropriate procedural safeguards. In its brief, the Journal-World argued that the “’societal interest the public has in open criminal proceedings’ dictates that the hearing be open to the public. Wichita Eagle Beacon Co. v. Owens, 271 Kan. 710, 713 (2001). Both Owens and Kansas City Star Co. v. Fossey provide that a hearing can be closed only if a court has considered all ‘reasonable alternatives’ first. Owens, 271 Kan at 712; Kansas City Star Co. v. Fossey, 230 Kan 240, 250 (1981). Based on the language of the March 4, 2015 order, there is no evidence that the Court considered any such alternatives.”

The Journal-World went on to argue that “[i]n this case, alternatives to closure were evident. The Court could have limited the hearing to argument to a question of law, namely, with regard to whether or not a request for an affidavit necessarily becomes moot after the affidavit is expunged. Further, the case numbers could have been stricken from the docket sheet, and the defendants could have been listed as ‘John Doe 1’ and ‘John Doe 2.’ The Court could also have issued protective orders to attorneys who argue the matter preventing them from mentioning any specific facts related to the arrest, and limiting them to generic questions of law. Finally, all parties could have been ordered not to use the names or identifying information of any party or other participant.”  The remaining participants also filed briefs, and although additional arguments were made, all essentially concurred that the affidavits no longer legally existed for the purpose of the paper’s requests.

Despite the Journal-World’s request to cancel the hearing and the participants’ agreement that the affidavits no longer existed, as well as the fact that the newspaper never requested a hearing in its mandamus action, Judge Huff nevertheless appeared prepared to conduct one based on an Order Appointing Counsel received by the Journal-World on or about March 24, 2015.  That order provided that one of the alleged victims was to have appointed counsel appear on that individual’s behalf at “any further proceedings,” including, presumably, the April 10 hearing.  Apparently, the judge’s commitment to having the hearing was rooted in her response to the Journal-World’s mandamus petition, where her counsel, assigned by the Attorney General’s Office, indicated that at the “conclusion of the hearing, Judge Huff will issue a written order, making findings as to Petitioner’s Motion to intervene, for relief from the court’s prior orders, and for disclosure of the affidavits.”

In an attempt to ensure that a closed criminal proceeding would not take place, the Journal-World drafted a proposed agreed order to dismiss the mandamus case and provided the proposed order to Judge Huff’s counsel on Friday, March 27, 2015.  In the proposed order, the Journal-World indicated its willingness to dismiss the mandamus action because the expungement of the arrest records rendered compliance with the request impossible

On March 30, 2015, Judge Huff issued an Order Granting Request by Lawrence Journal-World to Withdraw Motion to Unseal Affidavit and Cancelling Hearing Regarding Same. There, the Court held that “[b]ecause of the expungement, as well as the withdrawal of the Journal-World’s motion to unseal the affidavits, this court does not further consider whether the affidavits are required to be provided to the Journal-World and to the public or whether an exception lies under K.S.A. 22-2302.” Judge Huff’s mandamus counsel subsequently filed a Notice with the Supreme Court indicating the Judge’s belief that the mandamus action is now moot.

Given the expugement, the Journal-World agreed that it became impossible for the district court to grant its requests.  As a result, on April 1, 2015, the newspaper filed its motion to dismiss the mandamus action, and asked the Kansas Supreme Court for the following relief: to find that Intervenor’s request for the probable cause affidavits under K.S.A. 23-2302 was not rendered moot by the dismissal of the criminal charges; since the dismissal of charges, the affidavits that are the subject of Intervenor’s original request and motion to unseal have been expunged pursuant to K.S.A. 22-2410; having been expunged, the affidavits no longer legally exist for the purposes of Intervenor’s request or motion to unseal; and because of the expungement, the respondent is precluded from considering whether to disclose the affidavits as requested by Intervenor, and the respondent therefore does not need to conduct a hearing or make any findings under K.S.A. 22-2302 regarding either Intervenor’s initial request or Intervenor’s motion.  Given that the case is essentially concluded, a relatively cursory order is expected, but hopefully it will contain some or all of the relief requested by the paper.

The proceedings related to the Journal-World’s request for affidavits have taken curious turns. For example, even though the Journal-World was established as an Intervenor in the proceedings, the newspaper never received notice of a hearing on the defendants request for expungement of records related to their arrests. Such a hearing is required by statute, and the Journal-World ideally would have had an opportunity to be present and verify that it was held.

Also noteworthy is the effect of Judge Huff’s initial denial of the Journal-World’s request for the affidavits. Because the Journal-World disagreed with the way the denial was accomplished, the newspaper challenged it and lengthy proceedings followed. As a result, the defendants gained the opportunity to seal the affidavits via the expungement statutes and render them non-existent and therefore non-disclosable to the Journal-World. Meanwhile, the reasons the Douglas County District Attorney’s Office filed the rape cases in the first place, and then dismissed them even before a preliminary hearing, remain unknown.

Although the Journal-World did not ultimately receive the affidavits, Judge Huff’s order dated February 27, 2015, acknowledged that the request for them was not moot even after the underlying criminal case had been dismissed. Further, had expungement not occurred, mandamus counsel’s filings seem to indicate the judge now appreciates the kind of findings that must be made under K.S.A. 22-2302 before an affidavit may be sealed.

Through its efforts in this case, the Journal-World has called attention to the statutory procedures regarding access to probable cause affidavits. The newspaper has shown the need for careful judicial consideration of requests for an affidavits. As a public record, affidavits have significant value as a source of information about whether the criminal justice system is working as it should.