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June 3, 2024 |  By: Rudi Keller - Missouri Independent

Lawsuit claims new Missouri court secrecy law is unconstitutional

cole county courthouse

By Rudi Keller - Missouri Independent

A state law requiring secrecy in court filings violates the Missouri Constitution’s requirement for open courts and imposes steep new costs on litigants, especially those pursuing 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 the Gateway Journalism Review, asks for the courts to overturn the law, passed during the 2023 legislative session.

Along with violating Missourians’ rights to courts that are open, the lawsuit alleges that the law violates First Amendment free speech protections in the U.S. Constitution and sections of the Missouri Constitution limiting lawmakers’ powers to expand bills beyond their original scope.

Under the law and rules implementing it, every reference to a witness or victim in every case filing must be censored or the attorney filing it risks sanctions.

“For example, court records cannot even name the victim of a murder case –  even though murder is a terrible crime of great interest to every Missouri community and citizen,” the lawsuit states. “This makes it difficult for citizens and the media to fully follow and understand criminal cases of great interest. And there is no privacy  interest for redacting murder victims’ names, because homicide victims, being deceased, have no personal privacy interest.”

Removing those names can be time consuming and – when lawyers charge hundreds of dollars per hour – expensive, said Dave Roland, one of the attorneys working on the case.

The rules put additional burdens on prosecutors, defense attorneys and counsel in civil cases to scour their filings for possible violations, Roland said. The task is multiplied many times when preparing cases for an appeal, he said, because a party seeking to overturn a lower court ruling must file a complete copy of the court record – including transcripts of trials and other hearings – with all the prohibited information removed.

Transcripts are already expensive, Roland said.

“Depending on the length of the trial you know, the cost can vary,” he said. “If you have a one day trial, it may only be a couple of hundred dollars for the transcript. If you’ve got a multi-week trial, then it could be thousands of dollars.”

The two attorneys who are parties to the case, Michael Gross and Nina McDonnell, have turned down clients because of the additional cost and time 

“For example, Plaintiff McDonnell recently refused an employment discrimination direct appeal from a 12-day trial because redacting the transcripts would have required time the potential client could not afford, and the firm could not absorb,” the lawsuit states.

Roland’s co-counsels on the case include former Missouri Supreme Court Chief Justice Mike Wolff, who with Roland will represent Freivogel and the two attorneys, and Mike Nepple, Mark Sableman and Justin Mulligan of Thompson Coburn, representing the broadcasters.

In October, writing for Gateway Journalism Review, Sableman called Missouri the “State of Unnamed Persons.”

The new law hurts the public by hiding information, makes it difficult for attorneys outside the case to evaluate it and leaves people interested in a case unsure about how it was handled, he wrote. 

Even judges writing appellate opinions must follow the rules and leave out any individual identifiers, he noted.

“You can’t tell if ‘Expert Witness’ in one case had been found to lack credibility in a previous case,” Sableman wrote “You can’t tell if Officer D.V. in State v. Smith was found guilty of misconduct in another case. If you know and care about a particular case, you can’t tell if 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 reporting, said Chad Mahoney, executive director of the association.

“You have to have the facts and the context to give people the whole truth,” Mahoney said. “And now a lot of the context, according to what we’re hearing from some of our member newsrooms, is lost, making it very difficult for them to inform the public about what’s going on.”

The lawsuit not only asks the court to throw out the law requiring censorship of court documents, it also argues that the bill in its entirety violates procedural rules in the constitution for passing bills.

Under those rules, a bill changing court operating rules established by the Missouri Supreme Court must be “a law limited to the purpose.” In addition, bills cannot be amended to change their original purpose and must deal with “one subject clearly expressed in its title.”

The bill that included the court censorship language began in the Senate as a four-page bill changing the dates in one section of state law concerning when a fund to support court automation expires, with a title stating it was about court automation.

When it left the Senate, it was five pages long and included a pay raise for court reporters. The title stated it was about court operations.

When it returned from the House, it was 54 pages long, it altered 29 sections of state statutes and the title stated it was about judicial proceedings. There are at least five provisions that have nothing to do with the courts, the lawsuit states.

State Rep. Rudy Viet, a Wardsville Republican, shepherded the bill through the House. He could not be reached Monday for comment on the lawsuit.

The provision was added on the House floor by state Rep. Justin Hicks, a Lake St. Louis Republican. Hicks could not be reached Monday for comment.

Hicks, a candidate for the GOP nomination to Congress in the 3rd District, has used the courts repeatedly to bury embarrassing information about his past. In 2021, he persuaded a St. Louis County judge to seal the records from a 2010 domestic violence case when a woman accused Hicks, then 17, of choking her.

A consent order signed by Hicks barred him from contact with the woman for a year.

When a potential candidate for Hicks’s House seat published copies of the order and other material from the case online, Hicks sued him and accused him of publishing private information. After initially sealing the case, St. Charles County Circuit Judge W. Christopher McDonough opened it, saying there was no “compelling justification” to keep it closed. The case has since been dismissed.

Because the lawsuit has just been filed, there has been no response from the state. But because the attorney general’s office, which will have to defend the law, has already been troubled by violations in its own court filings, Roland hopes for a quick resolution.

“It is possible, and this is me being optimistic, that the attorney general’s office may recognize that they’ve got a significant constitutional problem on their hands,” Roland said.

In a pending appeal of a $23 million award to HHS Technologies over a breach of contract claim with the state Medicaid system, Bailey’s office had to file the same set of documents three times to get the redactions right, the Kansas City Star reported.

“This illustrates the problem,” Roland said. “If the attorney general’s office is going to get dinged for failing to make proper redactions, it illustrates the problem.”