State v. Alston

• Decision Date: 16 December 1994
• Docket Number: No. 70390,70390
• Citation: 256 Kan. 571,887 P.2d 681
• Parties: , 23 Media L. Rep. 1321 STATE of Kansas, v. John ALSTON, Appellee, The Atchison Globe and Gary Dickson, Respondents in Contempt Proceedings/Appellants.
• Court: Kansas Supreme Court

Page 681

887 P.2d 681

256 Kan. 571, 23 Media L. Rep. 1321

STATE of Kansas, v. John ALSTON, Appellee The Atchison Globe and Gary Dickson, Respondents in Contempt Proceedings/Appellants.

No. 70390.

Supreme Court of Kansas.

Dec. 16, 1994.

Syllabus by the Court

1. Adverse pretrial publicity may endanger the ability of a defendant to receive a fair trial in situations where prospective jurors read or hear the adverse publicity and are affected in their judgment should they later sit as jurors.

2. In determining whether a judicial order of prior restraint is permissible, a judge must examine the evidence and determine: (1) the nature and extent of the pretrial news coverage; (2) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (3) how effectively a restraining order would operate to prevent the threatened danger.

3. The issuance of a restraining order is a matter for the sound discretion of the trial court. It is ordinarily done ex parte, and without notice to the party affected, and for this reason should be reluctantly issued. In view of the drastic consequences of a restraining order, the party to be restrained should be heard, when feasible, before the order is granted.

4. The First Amendment to the United States Constitution and § 11 of the Bill of Rights of the Kansas Constitution forbid the imposition of criminal sanctions for truthful reporting of facts gleaned from public records. By placing information in the official public records, the State has thereby released the information to the public and has placed it in the public domain.

5. Those who see and hear what transpired in an open courtroom can report it with impunity.

6. The collateral bar rule permits enforcement of a judicial order through criminal contempt even though the underlying order is later shown to be unconstitutional.

7. As a general rule, if the court reviewing a judicial order finds the order to have had any pretense of validity at the time it was issued, the reviewing court should enforce the collateral bar rule.

8. There are instances where a judicial order will be so patently unconstitutional that it will be excepted from the collateral bar rule.

9. Even when a newspaper believes that it is subject to an unconstitutional order of prior restraint, the newspaper is required to make a good faith effort to seek emergency relief from the appellate courts. Only where timely access to an appellate court is not available can the newspaper publish the restrained information and then challenge the constitutionality of the order in subsequent contempt proceedings.

Daniel S. Garrity, of Garrity, Kuckelman & Kurth, Atchison, argued the cause and was on the brief, for appellants.

Gunnar A. Sundby, of J. David Farris Law Offices, Atchison, argued the cause and was on the brief, for appellee.

Melanie S. Morgan, of the Law Office of Joseph D. Johnson, Chartered, Topeka, was on the brief, for amicus curiae Kansas Ass'n of Crim. Defense Lawyers.

William G. Howard, of Lathrop & Norquist, L.C., Overland Park, was on the brief, for amicus curiae Kansas City Star Co.

LOCKETT, Justice:

A newspaper and its publisher appeal their convictions of indirect contempt of court for violating the district court's order not to publish information contained in the court record and discussed in open court concerning the criminal background of the accused awaiting trial and the fact of the court's order.

On April 30, 1993, John Alston was charged with two felonies and five misdemeanors resulting from the stop and search of his vehicle by a Kansas Highway Patrol Trooper. Later that day, an Atchison district court services officer filed a "Bond Screen Report" on Alston. That report, filed with the clerk of the district court, initialed by Judge Maurice O'Keefe, and part of the public court file, listed Alston's aliases and his prior record of multiple charges and convictions. Shortly after Alston's arrest, the Atchison Daily Globe (Globe) published an article stating Alston had been denied bail on the basis of his previous conviction of felony theft. Apparently, a Globe reporter acquired information for the article from the county attorney.

Prior to trial, Alston's defense counsel filed a motion to suppress certain evidence gathered from Alston's vehicle and a motion in limine to prevent the State from discussing or introducing evidence of Alston's prior record or outstanding warrants for his arrest. On June 25, 1993, the district judge heard the motions. There had been no request by either party to close the proceeding to the public. A Globe reporter was in the courtroom. The district judge granted defense counsel's motion in limine. When the judge asked counsel whether there was "[a]nything else along that line," defense counsel noted the presence of the Globe reporter in the courtroom and expressed concern that publishing Alston's prior criminal history in the newspaper would bias the jury venire and force the defense to request a change of venue. In response to defense counsel's concerns, the district judge ordered the reporter not to report Alston's criminal history or the fact that the court prohibited publication. The judge stated that because the trial would be held in a small town, he wanted the State and the defendant "to start out on the same basis at the time of trial." The court's order was issued at approximately 10 a.m. The publication deadline for the Globe's Friday evening edition was 12 noon. The Globe does not publish a Saturday newspaper.

The reporter informed her superiors of the court's order. The Globe was unable to contact its counsel or the counsel for the Kansas Press Association. The Globe's managing editor phoned and talked to the judge. The publisher of the Globe, Gary Dickson, concluded that the judge would not rescind the order after a discussion with the managing editor. Because Dickson believed the court's gag order was constitutionally invalid and would unacceptably delay publication of the news, he decided to publish the story.

The evening edition of the Globe carried a front page story with the headline: "O'Keefe imposes gag order on Globe; Tells newspaper not to report order because it might prejudice Alston jurors." The article begins:

"District Court Judge Maurice P. O'Keefe imposed a gag order on the Globe this morning restricting any reports about drug defendant John Alston's background.

"He also told the Globe not to report the gag order because that would create suspicion to possible jurors."

The article went on to report that Alston had a criminal background that had been the subject of defense counsel's motion in limine and had used a number of false names to avoid arrest, and it quoted statements by the court and counsel about whether Alston's prior convictions should be introduced as evidence. The Globe also sent a copy of its article to the Associated Press.

On Sunday, June 27, the Globe published a second front-page article with the headline: "Globe publisher says public has right to know about case; Judge's gag order called unwarranted." That article begins: "The Atchison Daily Globe defied a gag order placed on the newspaper by District Court Judge Maurice P. O'Keefe because the newspaper felt public interest outweighed the reasons for the order, the publisher [Dickson] said." In that article, Dickson was quoted concerning the basis of his decision to defy the court's gag order:

"We respect the judicial system and Judge O'Keefe and the right for everyone to have a fair trial, but we also believe, based on the First Amendment, we have a right to report the news. In this particular place, a gag order on the Globe is not a necessary thing."

Without going into specifics, the June 27 article repeatedly made reference to the fact that Alston did have a criminal record.

On June 28, Alston's counsel filed a motion to dismiss the defendant from further prosecution, claiming because of the Globe articles the defendant would be required to file a motion for a change of venue. The defendant asserted that because he was required to seek a change of venue, he had lost his right to a fair and speedy trial. That same day Judge O'Keefe denied Alston's motion to dismiss. Without a request by the defense to change venue, and without evidence, the judge found that Alston could not obtain a fair trial because of the publicity and sua sponte ordered the venue changed. Alston's criminal trial was transferred to Leavenworth district court.

On June 29, Alston filed a motion in the criminal action requesting the court to issue a citation in contempt against Dickson and the Globe for violating the court's order not to publish certain information. That same day, Judge O'Keefe issued an order for hearing on the motion for citation in contempt for violation of the court's gag order. Notice of the order was personally served on Dickson. It ordered Dickson to appear and respond to the motion.

The Globe entered a special appearance and filed a motion for recusal of Judge O'Keefe. It also requested a continuance of the hearing on the contempt citation. Judge O'Keefe granted a continuance but refused to recuse himself. Dickson and the Globe, who were now represented by the same attorney, filed an affidavit pursuant to K.S.A. 20-311d to disqualify Judge O'Keefe from presiding over the contempt proceedings. Based on the affidavit, the matter was assigned to another judge, Judge Lacey.

On August 2, Dickson and the Globe filed a motion to dismiss Alston's motion for contempt based on three grounds: (1) The court lacked jurisdiction over Dickson and the newspaper when it entered its order on June 25, 1993; (2) indirect contempt was not a remedy available to a defendant in a criminal action; and (3) the order violated the contemnors' constitutional rights to due process by denying them an opportunity to be heard.

On August 23, 1993, the court heard the matter....