TOPEKA
Kansas Highway Patrol Superintendent Herman Jones and the state have issued a subpoena to KMBC-TV in Kansas City for unaired footage of interviews with women who have accused Jones and the agency of misconduct — a demand raising concerns about freedom of the press.
The subpoena of the station seeks recordings of any interviews conducted with the women, according to court records. The subpoena commands the station to produce the recordings “whether audio, video, written or otherwise” – potentially encompassing not just video but reporters’ notes, too.
The subpoena was issued despite a Kansas law designed to shield journalists from having to disclose unpublished material. It was filed less than a month ago by Gaye Tibbets, a Wichita-based attorney defending Kansas and Jones in the lawsuit.
Five women, all current or former Highway Patrol employees, are suing the state of Kansas; Jones, a former Shawnee County sheriff who was appointed to lead the agency in March 2019 by Democratic Gov. Laura Kelly; and Jason De Vore, the assistant superintendent of the Highway Patrol. In a lawsuit filed in Feb. 2021, they alleged a hostile work environment, a culture of sexual harassment and gender discrimination.
Subpoenas to news organizations are unusual, though not unprecedented, but journalists often fight them. Kansas has what is commonly called a “shield law” that protects journalists from having to turn over notes and other unpublished material related to news gathering. The party seeking the disclosure must clear a high bar for a court to order disclosure.
“The subpoena that’s been issued in this case is curious because it is well established that such information is protected under the journalist privilege,” said Max Kautsch, a Lawrence attorney who focuses on First Amendment law and is president of the Kansas Coalition for Open Government.
“The Legislature passed this law almost 15 years ago for the express purpose of insulating journalists from misguided attempts to bring journalists into court.”
When KMBC reported in Feb. 2021 that the current and former employees were suing, the station broadcast interviews with some of the women without naming them. The women appeared on camera in silhouette and their voices appeared to have been altered, with KMBC saying the women feared retaliation from within the Highway Patrol.
At the time, KMBC reported that some of the women said they had been questioned by their superiors about whether they had given TV interviews. While KMBC and other news organizations, including The Star, have generally not identified the women, they are named plaintiffs in the lawsuit.
Tibbets told The Star on Monday that attorneys for the defendants were negotiating with KMBC over the subpoena. She said disputes exist with the station but didn’t elaborate on the details.
The subpoena to KMBC is one of more than a dozen issued by the defendants as the lawsuit proceeds, with most issued in the past month.
“Just routine discovery, as the women who had sued the KHP testified they gave recorded interviews” to KMBC, Tibbets said.
Multiple calls and emails to KMBC president and general manager Justin Antoniotti weren’t returned.
Six women originally sued the Highway Patrol, though one has since been dismissed from the lawsuit. The lawsuit followed two state investigations, including one conducted by an outside law firm, which concluded the women’s claims against Jones of gender discrimination and inappropriate touching and comments were unsubstantiated. While an investigation concluded that unwanted touching occurred, investigators said they could not confirm it was sexual in nature.
Kansas Attorney General Derek Schmidt’s Office hired Tibbets’ law firm to represent Jones and the state in the lawsuit. John Milburn, a spokesman for the Republican attorney general, said the firm exercises “operational control over the litigation.”
A spokeswoman for the Highway Patrol didn’t respond to a request for comment.
In a court document, Tibbets has said the women suing the Highway Patrol “failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm.” Employment actions take by Jones and the state were taken for “legitimate, non-discriminatory or non-retaliatory reasons,” the document says.
An attorney for the women didn’t respond to a request for comment.
A pretrial conference in the case is scheduled for Dec. 1. In October, Magistrate Judge Angel D. Mitchell, at the request of the defendants, agreed to waive a mediation deadline that had been set for Wednesday.
In a court document, Tibbets wrote that the defendants believed mediation wouldn’t be successful “both because of their confidence in their legal defenses and because the process for funding a state-funded settlement agreement involves approval by several layers of government officials and is time-consuming and cumbersome.”
The lawsuit from the five women is one in a series of legal challenges the Highway Patrol faces amid years of controversy over its leadership and culture. Former Highway Patrol Majors Scott Harrington and Josh Kellerman in December 2020 filed a federal lawsuit alleging they faced retaliation for supporting the women.
Harrington alleged Jones gave him a choice between resigning or being fired and that he resigned. Kellerman alleged Jones gave him a prepared letter of resignation to sign, which he signed.
In a court document, Jones and the state of Kansas have denied retaliating against Harrington and Kellerman.
Mark Bruce, a former Highway Patrol superintendent, has also sued. Bruce was appointed by former Republican Gov. Sam Brownback but retained by Kelly. He resigned under pressure in March 2019, just three months after Kelly entered office amid questions about an alleged domestic violence incident involving another top official in the agency. Kelly then appointed Jones to lead the agency.
Bruce wants the Highway Patrol to rehire him at the rank of major, and he has argued in court that Kansas law requires former Highway Patrol superintendents be returned to the same rank they held when they took over the agency.
