Kansas shield law cited in quashing of subpoena

Posted June 18, 2013

By Roy Wenzl, Wichita Eagle

A Sedgwick County district judge on Tuesday quashed a subpoena that sought to compel Wichita Eagle reporter Tim Potter to testify about contacts he had with lawyers representing inmates who claimed they were sexually abused in the county jail.

Judge Joe Kisner quashed the subpoena filed by attorney Charles O’Hara, who is representing former jail guard David Kendall. Kendall has been named in criminal court charges alleging he sexually abused jail inmates in 2012. The allegations against Kendall, and other issues involving management of the Sedgwick County Jail, became a dominant political issue last year when Wichita police Capt. Jeff Easter defeated incumbent Robert Hinshaw in the August primary election for sheriff.

At a hearing on Tuesday, O’Hara argued that Potter had taken a news release sent out by O’Hara’s office about the Kendall case and e-mailed it to attorney Kurt Kerns, who is representing alleged victims in pending civil litigation involving the sex abuse allegations. O’Hara argued to Kisner that sending that e-mail opened the door to O’Hara questioning Potter about what Kerns and another attorney, Mark Schoenhofer, might have said in conversations. Schoenhofer also is representing former inmates.

Lyndon Vix, an attorney representing The Eagle, said Potter took the news release from the O’Hara office and sent it to Kerns to ask for comment as Potter gathered information for stories he was writing about Kendall’s criminal court case.

Vix argued that O’Hara could not compel Potter to answer questions, in part because of Potter’s First Amendment privileges and in part because of a journalist “shield law” passed by the Kansas Legislature in 2010. In a court filing before the hearing, Vix wrote, citing court cases as precedent, that “Generally speaking, ‘press shield laws protect a newsperson from being adjudged in contempt for refusing to disclose either (1) unpublished information or (2) the source of information, whether published or unpublished.’ ”

Kisner said he found no evidence that Potter should be compelled to testify.

Vix also asked that Kendall be made to pay Potter’s attorney fees, saying that the subpoena given to Potter was unreasonable.