Court Ruling Puts Names Back In Court

By Mark Sableman >>

This is excerpted from an article published in the St. Louis Law Journal. Sableman first called attention to the broad redaction law when it was enacted in 2023. GJR played a lead role in bringing it to wider attention, leading to a court decision striking down provisions as unconstitutional. To implement the recent court decision and to promote the public interest in transparency of judicial proceedings, lawyers who brought the challenge and individual lawyers and law associations are advocating changes to court rules that clarify the limited subjects traditionally redacted – names of juveniles and victims of sex crimes.

Names are back in Missouri state courts. 

Pleadings are again understandable to everyone, not just insiders.  As a result, journalists can fairly report on cases, interested persons can monitor cases, and researchers and historians will be able to use court records and opinions as source materials in the same way as has been done for centuries.

For lawyers, their burden of redacting names from all pleadings and exhibits has been relieved.  They and court clerks can go back to business as normal.

 Judge Aaron Martin of Moniteau County, sitting specially in Cole County Circuit Court, on December 20, 2024, granted a partial judgment on the pleadings to the plaintiffs who were challenging the constitutionality of the Missouri Legislature’s bill, passed in 2023, which required redaction of all witness and victim names from court filings.

The plaintiffs included appellate lawyers Michael Gross and Nina McDonnell, journalist William Freivogel, the Missouri Broadcasters Association, and Gray Local Media.  (I was one of the attorneys for MBA and Gray.)  The defendants were the state, the governor, and the attorney general….

Judge Martin (found)  the redaction law was unconstitutional under both the First Amendment of the federal constitution and the Open Courts provision of the Missouri Constitution.  He also enjoined the defendants…from enforcing the redaction provisions. His order was effective when issued, on December 20, although a clarifying order was issued on January 2.

The redaction mandate (had) represented a sharp break from past Missouri practice.

Missouri court documents have long been generally open to the public, subject to limited exclusions. Court Operating Rule 2, which addresses access to court records, begins with the principle, “Records of all courts are presumed to be open to any member of the public for purposes of inspection or copying.”  It then provides for redaction of information “that is confidential pursuant to statute, court rule or order, or other law.”  Those exceptions, which have been crafted and enacted over time, relate to particular sensitive situations, chiefly arising in juvenile, family or criminal contexts.  

That was changed radically in 2023 with the legislature’s enactment of SB 103, a lengthy omnibus bill, that included a short amendment to section 509.520.1 of Missouri Revised Statutes, adding language which made it mandatory for all lawyers and court personnel to redact all witness and victim names from court filings.  These provisions originated with a bill submitted by a freshman legislator who did not like the fact that an order of protection entered against him was in the public record. (He later tried to make that record confidential, and sued a political opponent who had let others know about it.) 

There were no hearings on this proposal other than the short one in which the sponsor introduced it. That provision eventually got added onto several omnibus bills, one of which, SB 103, passed and was signed by Governor Parson.

As a result, on the law’s effective date, August 28, 2023, redaction of all witness and victim names became mandatory.  Because the opening of CaseNet to more direct public access, beginning in July 2023, had prompted officials to tighten procedures with respect to redactions, this meant that the new Confidential Redacted Information Filing Sheet (CRIFS) would need to be used on practically all new court filings.   

Beginning after August 2023, appellate decisions began circumventing use of names in various ways.  Participants were referred to by their position or function (“Nurse 1), their relationships (“Victim’s Mother”; “Defendant’s Neighbor”) or by initials (“Officer M.J.”).  It seems likely that some decisions summarized more, and provided fewer details on the factual basis of the dispute being decided, because of the constraint of the new redaction rule.

Various parties, including the Missouri Broadcasters Association, asked the legislature to repeal or fix the statute, but while repeal bills passed the House of Representatives and the Senate Judiciary Committee in 2024, the end-of-term paralysis in the Senate that year prevented full passage.

Accordingly, in May 2024, Plaintiffs sued to invalidate the new statutory rules. (They) challenged the constitutionality of the redaction provision based on the First Amendment and the Open Courts provision of the Missouri Constitution. . …  

The State did not vigorously challenge the concept that blanket redaction rules violated the First Amendment and Open Courts provision.  In one motion, the Attorney General acknowledged that provisions to that effect are “likely” unconstitutional.  Rather the state primarily sought to save the act by arguing that it didn’t really mean to set new blanket redaction requirements, and only meant to reaffirm the existing, much more limited, redaction rules.

But Judge Martin did not accept this interpretation, and at argument referred to the fact that section 509.520.1 begins by stating that “the following confidential and personally identifiable information” must be redacted, with witness and victim names and identifying information listed in two of the following subsections. 

As to the substantive reasons for unconstitutionality, Plaintiffs cited both extensive authorities on the key principles of the First Amendment public right of access to courts, and the Open Courts right, as well as two 2024 cases on similar issues.  In a federal challenge to a Hawaii redaction rule, the Ninth Circuit found that rule unconstitutional. And in an Ohio state case, that state’s Supreme Court found redaction rules unconstitutional under the Ohio Open Courts provision. 

Mark Sableman is a partner at Thompson Coburn LLP and treasurer of the Gateway Journalism Review. William H. Freivogel, publisher of GJR, was a named plaintiff in the case and was represented by former Missouri Supreme Court Chief Justice Michael A. Wolff.