A state law requiring secrecy in court records violates the Missouri Constitution’s requirement that courts be open and imposes high new costs on litigants, especially those who file appeals, a lawsuit filed last week argues.
The lawsuit, filed in Cole County by the Missouri Broadcasters Association, two attorneys and William Freivogel, editor of Gateway Journalism Review, asks the courts to strike down the law, passed during the 2023 legislative session.
In addition to violating the rights of Missourians to open courts, the lawsuit alleges that the law violates the free speech protections of the First Amendment of the United States Constitution and sections of the Missouri Constitution that limit the powers of legislators to expand bills beyond their original scope.
Under the law and the rules that implement it, any reference to a witness or victim in every case presentation must be redacted or the lawyer presenting it risks sanctions.
“For example, court records cannot even name the victim in a murder case, even though murder is a terrible crime of great interest to all Missouri communities and citizens,” the lawsuit states. “This makes it difficult for citizens and the media to fully follow and understand high interest criminal cases. And there is no privacy interest in redacting the names of murder victims, because homicide victims, having died, have no personal privacy interest.”
Removing those names can be time-consuming and, when attorneys charge hundreds of dollars an hour, expensive, said Dave Roland, one of the attorneys working on the case.
Missouri hides more judicial information from the public than other states
The rules place additional burdens on prosecutors, defense attorneys and attorneys in civil cases to review their records for possible violations, Roland said. The task is multiplied many times over when preparing cases for appeal, he said, because a party seeking to overturn a lower court ruling must submit a complete copy of the court record, including transcripts of trials and other hearings, eliminating all the prohibited information. .
Transcripts are already expensive, Roland said.
“Depending on the length of the trial, the cost may vary,” he said. “If you have a one-day trial, it may only cost a couple hundred dollars for the transcript. “If you have a multi-week trial, then it could cost thousands of dollars.”
The two lawyers involved in the case, Michael Gross and Nina McDonnell, have turned away clients because of the cost and additional time.
“For example, plaintiff McDonnell recently rejected a direct employment discrimination appeal from a 12-day trial because drafting transcripts would have required time that the potential client could not afford and the company could not absorb,” the lawsuit states.
Roland’s co-counsels in the case include former Missouri Supreme Court Chief Justice Mike Wolff, who along with Roland will represent Freivogel and the two attorneys, and Mike Nepple, Mark Sableman and Justin Mulligan of Thompson Coburn, representing the stations.
In October, writing for Gateway Journalism Review, Sableman called Missouri the “Unidentified People State.”
The new law harms the public by withholding information, makes it difficult for lawyers outside the case to evaluate it, and leaves people interested in a case uncertain about how it was handled, he wrote.
Even judges who write appellate opinions must follow the rules and omit any individual identifiers, he noted.
“You cannot know whether the ‘expert witness’ in one case lacked credibility in a prior case,” Sableman wrote. “You cannot know whether the DV officer in State v. Smith was convicted of misconduct in another case. If you know a particular case and are interested, you cannot know whether the witnesses you know about were called to testify or considered by the court.”
The broadcasters association joined the lawsuit because court records are a staple of news, said Chad Mahoney, the association’s executive director.
“You have to have the facts and the context to give people the whole truth,” Mahoney said. “And now a lot of the context, based on what we’re hearing in some of our member newsrooms, has been lost, making it very difficult for them to inform the public about what’s happening.”
The lawsuit not only asks the court to throw out the law requiring censorship of court documents, but also argues that the bill as a whole violates the constitution’s procedural rules for passing bills.
Under those rules, a bill that changes the operating rules of the courts established by the Missouri Supreme Court must be “a law limited in purpose.” Additionally, bills cannot be amended to change their original purpose and must address “a subject matter clearly expressed in their title.”
The bill that included the judicial censure language began in the Senate as a four-page bill that changed the dates in a section of state law regarding when a fund to support court automation expires, with a title that He said that it was about the automation of the courts.
When it came out of the Senate, it was five pages long and included a pay increase for court reporters. The title said that these were judicial operations.
When it returned from the House, it was 54 pages long, amending 29 sections of state statutes, and the title said it dealt with judicial proceedings. There are at least five provisions that have nothing to do with the courts, the lawsuit states.
State Rep. Rudy Viet, R-Wardsville, shepherded the bill through the House. He could not be reached Monday for comment on the lawsuit.
The provision was added in the House by state Rep. Justin Hicks, R-Lake St. Louis. Hicks could not be reached for comment Monday.
Hicks, a candidate for the Republican congressional nomination in the 3rd District, has repeatedly used the courts to bury embarrassing information about his past. In 2021, he convinced a St. Louis County judge to seal records of a 2010 domestic violence case when a woman accused Hicks, then 17, of strangling her.
A consent order signed by Hicks prohibited him from having contact with the woman for a year.
GET THE MORNING’S HEADLINES IN YOUR INBOX
SUBSCRIBE
When a potential candidate for Hicks’ House seat posted copies of the order and other case materials online, Hicks sued him and accused him of publishing private information. After initially closing the case, St. Charles County Circuit Judge W. Christopher McDonough opened it and said there was no “compelling justification” to keep it closed. The case has since been dismissed.
Because the lawsuit was just filed, there has been no response from the state. But since the attorney general’s office, which will have to defend the law, has already been hit by violations in its own court records, Roland hopes for a quick resolution.
“It is possible, and I am optimistic, that the attorney general’s office will recognize that it has an important constitutional problem on its hands,” Roland said.
In a pending appeal of a $23 million award to HHS Technologies over a breach of contract claim with the state’s Medicaid system, Bailey’s office had to submit the same set of documents three times to correct the wording, the Kansas City reported. Star.
“This illustrates the problem,” Roland said. “If the attorney general’s office is going to be criticized for not drafting properly, that illustrates the problem.”
Keynote USA
For the Latest Local News, Follow Keynote USA Local on Twitter.