Baker v. Hayden

Decision Date02 July 2021
Docket NumberNo. 117,989,117,989
Citation490 P.3d 1164
CourtKansas Supreme Court
Parties Linus BAKER, Appellant, v. Calvin HAYDEN, et al., Defendants, and Laura Brewer, in Her Capacity as Official Custodian of Records for the Tenth Judicial District, Appellee.

Linus L. Baker, appellant, argued the cause, and was on the briefs, pro se.

Joseph R. Colantuono, of Colantuono Bjerg Guinn Keppler LLC, of Overland Park, argued the cause, and Richard G. Guinn and Isaac Keppler, of the same firm, Stephen Phillips, assistant attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellee Laura Brewer.

Stephen Douglas Bonney, of ACLU Foundation of Kansas, of Overland Park, and Nolan Wright, legal intern, of the same foundation, were on the brief for amicus curiae American Civil Liberties Union Foundation of Kansas.

Per Curiam:

The parties ask us to answer whether the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq., requires a Kansas district court to make audio records of open court proceedings available for public inspection. But we cannot reach this question because we conclude Linus Baker lost a stake in resolving that question at a point after he filed his petition in this case and thus lost standing. Standing is a component of appellate courts' jurisdiction. When a party loses standing, courts lose jurisdiction. And without jurisdiction, we must dismiss the appeal.


Baker, an attorney, made a written request to listen to and copy digital audio recordings made during two public court hearings conducted in the Tenth Judicial District's Johnson County District Court. Those hearings occurred in a protection from abuse case involving Baker's adult daughter. Baker was neither a party in the case nor counsel for any party. He made his request to the then-court administrator for the Tenth Judicial District, Katherine Stocks. The court administrator is the district's designated official custodian of public records. See K.S.A. 2020 Supp. 45-217(e) (" ‘Official custodian’ means any officer or employee of a public agency who is responsible for the maintenance of public records, regardless of whether such records are in the officer's or employee's actual personal custody and control."). While the appeal was pending before this court, Laura Brewer became the court administrator for the Tenth Judicial District and has been substituted in her official capacity as the named party. We will thus refer generally to the "records custodian."

The records custodian told Baker the recordings were all exempt from disclosure under KORA. The records custodian suggested he could pay the official court reporter to transcribe them. When Baker insisted on listening to the recordings himself, then-Chief Judge Kevin P. Moriarty interceded and again denied the request. Baker persisted and was consistently denied access. Each time, he was told he could purchase written transcripts from the court reporter at his expense.

The backstory to this involves an incident when Johnson County Sheriff's Department officials went to Baker's residence to serve Baker's adult daughter with a temporary order issued by the Wyandotte County District Court. The officials mistakenly assumed Baker's three-year-old granddaughter was a child referenced in the court order and physically restrained her.

Baker filed a pro se lawsuit over that incident and other matters. He named various Johnson County officials as defendants alleging federal and state law violations. Baker also named the records custodian as a defendant in an official capacity as records custodian for the Tenth Judicial District. He alleged the records custodian refusal to permit inspection of audio recordings of open court hearings violated KORA, as well as his common-law and constitutional rights to access judicial records.

Baker sought declaratory and injunctive relief, compensatory damages, attorney fees, and costs. Relevant to this appeal, he alleged: (1) The Tenth Judicial District is a public agency subject to KORA; (2) the requested audio recordings were public records under KORA; (3) the Tenth Judicial District has a routine of electronically recording court hearings and storing the recordings in its network computer server; (4) the Tenth Judicial District has a "de facto unwritten policy or rule" to deny the public access to those recordings; (5) this unwritten policy or rule violates KORA; and (6) the specific audio recordings he sought were not closed by statute, sealed by court order, or otherwise confidential under Kansas law. In his request for relief, he sought in part:

"[A] declaratory judgment, injunction, and any other appropriate order issue declaring that the audio recordings made by district court judges of proceedings open to the public are public records not subject to exemption under KORA, an order requiring [the records custodian] to make all audio recordings of hearings that are open to the public which are requested as an Open Records request to be made available to the requestor with the ability of the requestor to make a digital copy of the audio recording by listening to the recording."

During litigation discovery, the records custodian's then-counsel from the Kansas Attorney General's Office gave Baker the two audio recordings that sparked Baker's KORA claim. In doing so, the Attorney General's Office explained: "These [recordings] are provided as a response to your discovery request only, and not as an admission to the allegations and claims in your petition ." (Emphasis added.)

The records custodian moved to dismiss Baker's claims, arguing KORA exempts "in most instances" audio recordings of court hearings made, maintained, or kept in the Tenth Judicial District's computer network. The records custodian mostly relied on K.S.A. 2020 Supp. 45-219(a) (providing public agency need not provide copies of recordings except under specified circumstances); K.S.A. 2020 Supp. 45-221(a)(1) (public agency not required to provide inspection of record that is "specifically prohibited or restricted by ... rule of the Kansas supreme court"); and Supreme Court Rule 362 (2020 Kan. S. Ct. R. 422) (providing that "[w]ritten transcripts of electronic recordings shall be prepared by court personnel").

The district court dismissed Baker's claims against the records custodian. The court held audio recordings of open court proceedings made, maintained, or kept by the Tenth Judicial District were exempt from disclosure under both Rule 362 and K.S.A. 2020 Supp. 45-219(a). It also ruled Baker's demand to inspect the recordings was moot because counsel produced them during discovery. Finally, it ruled Baker had no constitutional or common-law right to the recordings—issues not preserved for our review. The district court also denied attorney fees and costs and then certified its rulings as a final judgment under K.S.A. 2020 Supp. 60-254(b).

Baker appealed. Among his many arguments, he contended his claims were not moot because the legal issue about public access to recordings remained and was capable of repetition. He filed a motion for transfer to this court, which we denied.

A Court of Appeals panel considered the parties' arguments and reversed the district court. See Baker v. Hayden , 55 Kan. App. 2d 473, 419 P.3d 31 (2018). As a threshold matter, the panel rejected the district court's mootness ruling. It held the issue was capable of repetition and was of public importance. It noted that the records custodian "continues to advance the argument that Baker was not entitled to the recordings under the KORA." 55 Kan. App. 2d at 477, 419 P.3d 31. The panel next held that neither Rule 362 nor K.S.A. 2020 Supp. 45-219(a) exempted audio recordings of open court proceedings made, maintained, or kept by a judicial district from mandatory disclosure under KORA. 55 Kan. App. 2d at 484-85, 419 P.3d 31. It then denied Baker's request for attorney fees. Finally, the panel found it "unnecessary" to remand the case to the district court because Baker received the two recordings during discovery. 55 Kan. App. 2d at 485-86, 419 P.3d 31.

An exceptional flurry of activity followed the Court of Appeals' decision. The records custodian filed a motion for leave to file an out-of-time motion for rehearing with the panel. The records custodian explained the Attorney General's Office had allowed the deadline to lapse and had refused to file a petition for review with this court. The records custodian argued "substantial issues" had not been addressed, including Sixth Amendment violations that would occur if privileged attorney-client conversations captured by the courtroom recordings were made public. The records custodian included declarations from court reporters in the Third, Tenth, and Twenty-Third Judicial Districts stating attorney-client conversations sometimes can be heard on these recordings. The Court of Appeals denied the motion for leave to file the out-of-time motion for rehearing. The Attorney General's Office withdrew as the records custodian's counsel and other attorneys entered appearances.

The records custodian petitioned this court for review, arguing the Court of Appeals' decision: (1) violates Rule 362; (2) contradicts K.S.A. 2020 Supp. 45-219(a) ; (3) violates Supreme Court Rule 1001(e)(4) (2020 Kan. S. Ct. R. 615) dealing with media access to open court proceedings; (4) violates criminal defendants' Sixth Amendment rights when the recordings include attorney-client conversations; and (5) improperly circumvents the Supreme Court's rules about payment to court reporters for transcripts. Conspicuously, the records custodian did not seek review of the panel's ruling that exceptions to the mootness doctrine allowed consideration of the issues. 55 Kan. App. 2d at 477, 419 P.3d 31. Baker did not cross-petition. We granted review but limited the issues to the records custodian's first two arguments. See Supreme Court Rule 8.03(b)(6)(C)(i) (2020 Kan. S. Ct. R. 52).


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