State v. Stauffer Communications, Inc.

• Decision Date: 31 March 1979
• Docket Number: No. 49917,49917
• Citation: 592 P.2d 891,225 Kan. 540
• Parties: , 5 Media L. Rep. 1081 STATE of Kansas, Appellee, v. STAUFFER COMMUNICATIONS, INC., Appellant.
• Court: Kansas Supreme Court

Page 891

592 P.2d 891

225 Kan. 540, 5 Media L. Rep. 1081

STATE of Kansas, Appellee, v. STAUFFER COMMUNICATIONS, INC., Appellant.

No. 49917.

Supreme Court of Kansas.

March 31, 1979.

Syllabus by the Court

1. The First Amendment to the United States Constitution and Section 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.

2. 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.

3. As a general rule it may be said if the state wants to keep the press from publishing information related to its governmental functions then it must do so by protecting the confidentiality of the information. The state is free to do so absent some limiting statute.

4. Neither the First Amendment nor Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control. Following Houchins v. KQED, Inc., 438 U.S. 1, 14, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978).

5. A statute which is overbroad is one which makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions.

6. A statute which is facially overbroad may be authoritatively construed and restricted to cover only conduct which is not constitutionally protected, and as so construed the statute will thereafter be immune from attack on the grounds of overbreadth.

7. The criminal sanctions provided in K.S.A. 21-3827 may not be imposed against persons, including the news media, for publishing truthful information properly obtained from public records, and as so construed and restricted the statute is not constitutionally impermissible under the First Amendment to the United States Constitution and Section 11 of the Bill of Rights of the Kansas Constitution.

Michael W. Merriam, of Colmery, McClure, Funk, Letourneau & Entz, Topeka, argued the cause and was on the brief for appellant.

Harry E. Warren, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Patricia K. Hirsch, legal intern, were with him on the brief for appellee.

FROMME, Justice:

The primary question presented to this court is whether the State of Kansas may subject persons, including the news media, to criminal sanctions for publishing information concerning issuance of arrest warrants prior to execution and return thereof when such information is taken from public records. See K.S.A. 21-3827. The appellant, Stauffer Communications, Inc., was convicted on two counts of having violated the above cited criminal statute because of articles printed in the Topeka Daily Capital, a daily newspaper published in Topeka, Kansas.

The facts are not in dispute. The sheriff in Douglas County was investigating the murder of Samuel Norwood. In the course of that investigation information came to the investigating officers which involved a stolen car and two occupants of that car. It appeared the occupants had some connection with the murder. Warrants were issued on complaints for the arrest of the two occupants of the car. The county attorney wanted the warrants executed before the two occupants could be alerted and leave the state. Sherry Pigg, a reporter for the Topeka paper, was in Lawrence. She apparently had become aware of the issuance of the warrants and of the names of the two occupants of the car. She interviewed the county attorney and asked him what link there was between the occupants and the Norwood murder. The county attorney requested that Ms. Pigg refrain from making any connection or further comment in her paper. Ms. Pigg requested the names. The county attorney refused to release any names. When Ms. Pigg said she already had the names, she was advised of the criminal statute, K.S.A. 21-3827, which prohibits publication until the warrants are executed and returned. Ms. Pigg then indicated she would print the names in her paper anyway. The county attorney advised her that if the names were printed he would file charges under the statute. The county attorney explained that he did not want the names disclosed because it might hamper efforts to locate and talk to the individuals about the murder.

Ms. Pigg refused to cooperate and called the Topeka office of her newspaper. She talked to Bob Sands, the state editor, about the situation. Sands directed her to go to the office of the clerk of the district court and get the correct names as listed in the court docket. They would publish the names. The newspaper had apparently obtained the names originally by monitoring the police radio and the editor wanted the court files checked to assure accuracy.

Ms. Pigg was advised a second time, when she checked with a deputy sheriff in Douglas County, that the paper would be prosecuted under the statute if the names were released. The newspaper released the names in two published articles. One of the two occupants of the car was never located. The other was located several weeks later outside the State of Kansas. This action was filed, prosecuted and convictions were obtained.

Ms. Pigg obtained the names of the two persons for whom warrants were issued by going into the office of the clerk of the district court. The criminal appearance docket was on a table in the back of the room. The room was divided by a counter and a swinging gate. It was the general practice for reporters from the news media to go through the gate, proceed to the table where the criminal appearance docket was kept and look through its pages. It is a public document or record which is kept by the clerk of the district court.

K.S.A.1978 Supp. 45-201(A ) states:

"All official public records of the state, counties, municipalities, townships, school districts, commissions, agencies and legislative bodies, which records by law are required to be kept and maintained, except those of the district court concerning proceedings pursuant to the juvenile code which shall be open unless specifically closed by the judge or by law, adoption records, records of the birth of illegitimate children, and records specifically closed by law or by directive authorized by law, shall at all times be open for a personal inspection by any citizen, and those in charge of such records shall not refuse this privilege to any citizen."

Prior to the present case right of access to records in Douglas County was not restricted. Since the present case arose access to information on issuance of warrants is restricted until such time as the warrants have been returned. It would appear that this present practice of temporarily protecting the confidentiality of documents and records by restricting access may be justified for proper governmental reasons. We will speak to this later in this opinion.

The appellant Stauffer contends its conviction was constitutionally impermissible in that the First Amendment to the United States Constitution and Section 11 of the Bill of Rights of the Kansas Constitution forbid the imposition of criminal sanctions for truthful reporting of facts gleaned from public documents and records.

The statute under which appellant was charged is K.S.A. 21-3827. The statute reads:

"An unlawful disclosure of a warrant is revealing or making public in any way, not necessary for the execution of such warrant, the fact that a search warrant or warrant for arrest has been applied for or issued or the contents of the affidavit or testimony on which such warrant is based, prior to the execution thereof.

"An unlawful disclosure of a warrant is a Class B misdemeanor."

The First Amendment to the United States Constitution reads in pertinent part:

"Congress shall make no law . . . abridging the freedom of speech, or of the press; . . . "

The Bill of Rights, Section 11 of the Kansas Constitution, reads in pertinent part:

"The liberty of the press shall be inviolate; and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such rights; . . . " Appellant places primary reliance on two recent United States Supreme Court cases, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), and Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328, the Supreme Court holds that the First and Fourteenth Amendments of the United States Constitution preclude the states from providing a cause of action for invasion of privacy for the publication of the name of a rape victim where the name is included in court records open to public inspection. The court explains its holding as follows:

"By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. . . . " 420 U.S. at 495, 95 S.Ct. at 1046.

The court continues in broad language which appellant asserts controls the present case:

"In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection." 420 U.S. at 495, 95 S.Ct. at 1046.

A like result is reached in Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977). In that case the Supreme Court reverses a state trial...