Judge orders Marion to pay more than $75,000 for hiding incriminating text
Staff writer
In a dispute stemming from Marion withholding incriminating open records, a judge awarded more than $75,000 Thursday to the Marion County Record’s lawyer.
District Judge Ben Sexton had ruled April 4 that the city acted in “bad faith” and ordered it to pay the legal fees of Bernie Rhodes, who represents the Record.
Among the documents the city concealed was a text message from then-Mayor David Mayfield saying he had met with Sheriff Jeff Soyez and then-Police Chief Gideon Cody three days before police raided the paper’s newsroom and told Cody he “was behind him and his investigation 100%.”
Rhodes requested $125,992.32 for his fees and expenses in suing to obtain that and other records. The city objected.
In oral arguments Thursday, Wichita lawyer Scott Ufford, representing the city, contended that lawyers in the Marion area charged less than Rhodes and that fees should be based on what a local lawyer would be paid for an open records suit.
Ufford also contended that city could not afford to pay Rhodes’ fees this year.
Rhodes contended that local attorneys lacked expertise to take the case. He specializes in media law, and there are not enough newspapers in Marion for him to open an office here.
He also noted that the city had accepted that it was appropriate for the Record to hire him because he already was the Record’s attorney in a related federal lawsuit pending from the now-disavowed raid Aug. 11, 2023 on the Record’s newsroom.
Ruling that the open records case was not as complex as the federal case, Sexton ordered the city to pay Rhodes $75,748.22 — $50,244.10 less than he requested — but agreed to allow the city to wait until 2026 to make payment, provided it pays interest on the amount owed.
Publisher Eric Meyer said the city’s poverty argument was “ridiculous.”
“Not only is it spending money like a drunken fool, it probably isn’t even paying for this directly,” Meyer said. “This probably is coming out of its insurance.”
Ufford and Jennifer Hill, who represent the city on behalf of EMC Insurance, the city’s insurance carrier, have an office in Wichita.
“The judge seemed to think it was perfectly fine for the city to bring in expensive lawyers from out of town rather than city attorney Brian Bina, who has an office here, but it was less important for the Record to hire one,” Meyer said. “It’s an unfair burden on the common man to expect him to have lesser representation than government does.”
Meyer was happy, however, that Sexton ruled that the city must pay.
“The city hid the truth, and it will cost taxpayers more than $75,000,” he said. “If they had told the truth from the beginning, it would have cost them nothing.”
Rhodes echoed that sentiment.
“It is a sad day for the taxpayers of Marion that they have to pay $76,000 because they hid text messages that are clearly public records,” Rhodes said.
Meyer pointed out that the money goes straight to Rhodes’ firm, not to the Record.
“We get not one cent of this,” he said.
Meyer conceded that the judge might have done all he could. Although the legislature requires government records and meetings must be open, it specifies no punitive damages when officials defy the law.
“Our legislature needs to address that,” Meyer said. “Otherwise we are headed down a very deep, dark road of government breaking the law.
“Bernie Rhodes is a great guy, and he’s probably not going to bill us for the rest of his fees. If he did, we would not remain open. The city would have accomplished what it set out to do when it raided us.”
Rhodes said he would not charge the difference to the Record.
Marion Mayor Mike Powers, who preceded Sexton as chief judge in the Eighth Judicial District, sat with Ufford and Hill at the defendant’s table in Sexton’s Marion courtroom.