Emporia Municipal Court is again allowing the press and the public to attend its proceedings. Last Friday, Judge Ted Hollembeak reversed an earlier ruling that had closed the courtroom to observers because of concerns about the pandemic.
Last month, a Bulletin reporter was denied access to the courtroom while attempting to cover a municipal case involving dozens of citations for underage drinking, many of which were Emporia State athletes and students. During those Nov. 19 hearings, most of the 36 individuals cited for underage drinking were approved for diversion.
There was no announcement of the court closing on its website. Signs taped to the courtroom doors said observers weren’t allowed.
Between the closed hearings, in which only parties to the cases and court personnel were allowed in the courtroom at the municipal offices at 518 Mechanic St., The Bulletin asked the judge to reconsider. At the time, the judge said he would not, and that there were no provisions to stream the proceedings. The judge also denied a request that the proceedings be audio recorded.
In addition to hearing city cases, the court also handles traffic and misdemeanor cases filed by Emporia State University Police.
The Bulletin retained Max Kautsch, a Lawrence attorney who serves as the Kansas Press Association hotline lawyer, to write a letter to municipal court expressing the newspaper’s concern that the press and public were being unconstitutionally barred from the hearings.
“I am writing to encourage the Emporia Municipal Court to adopt constitutionally permissible rules for public access to its court proceedings that balance the public safety concerns posed by the COVID-19 pandemic against the public’s well-established First Amendment right to attend criminal court proceedings,” Kautsch wrote in his Dec. 4 letter, which was emailed to Court Clerk Mike Henderson.
“Helpfully, the Kansas Supreme Court has recently provided guidance (on this),” Kautsch said in the letter. “Although municipal courts are of course not subject to the Supreme Court’s administrative orders, the one issued on December 1, 2020, titled 2020-PR-123, is instructive because it represents constitutionally permissible time, place and manner restrictions on the public’s First Amendment right to in-person court access.”
Shortly after municipal court had received the email Dec. 4, Kautsch received a call from Hollembeak who said he had rescinded his earlier order. Signs saying that there was no press or public access had been taken down, he said.
In an interview with The Bulletin on Tuesday, Hollembeak said he undertook the importance of preserving the right of the press and the public to attend proceedings.
“If we ever have to restrict courtroom access for any reason, for Coronavirus or anything, it would require us to make provisions for anyone not being able to attend the court,” Hollembeak said. “(We are going to be) advised tomorrow by...the city on how to make it possible to attend virtually.”
Previously, Hollembeak did not have a policy for media attendance nor was the court equipped to handle video streaming amid the coronavirus pandemic.
“We have received (The Bulletin’s) specific request,” Hollembeak said. “We are trying to have a designated media area in the courtroom now. I do not anticipate (the room filling up) in municipal court, but you never know.”
According to the Annual Report of the Kansas Municipal Courts, the court of Emporia filed a total of 2,167 cases in 2019.
"Normally we don't have more than thirty or forty five people in morning hearings and we don't have problems,” Hollembeak said. “But the day (The Bulletin) came, we had about seventy-five people for the day.”
In the letter, Kautsch stressed the need for the court to find alternatives to allow access.
“Despite the clear public safety concern the (previous) rule seeks to address related to preventing the spread of COVID-19,” Kautsch wrote, “it fails to pass constitutional muster because it is neither narrowly tailored nor does it leave open ample alternative channels for the public to exercise its First Amendment rights.”
Hollembeak said he will be working with Emporia’s Information Technology Department this week to finalize a remote access policy before publicizing it.
“In fifteen years, this is maybe the second media request I have ever had for stuff in the courtroom,” Hollembeak said in the interview. “We have never really had to deal with it before. So that is what we have planned so far to make sure the city streaming facilities are made available. We are seeing what it will take before we finalize that policy.”
Twenty of the 36 cases in the underage drinking hearings were Emporia State students who attended a house party at 1431 Center St., a block away from campus. The tickets were written by the Emporia Police Department.
“A very small percentage of the cases I see are cited by the ESU officers,” Hollembeak said. “If it is a felony, like a sexual offense or a rape, we will not see it. The campus police really only concern themselves with things in the immediate area of the campus.”
As previously reported by The Bulletin, court clerk Mike Henderson had been barring entry to anyone not actively participating in court, also citing concerns about limited spacing.
Henderson did not respond to additional emails or calls from The Bulletin asking for comment.
“(Our ability to handle cases) varies each year, especially with the changing manpower in the police department, but we have been able to process it so far,” Hollembeak said. “Some years we handle four or five thousand (court cases) and others it is as low as one or two thousand.”