By William H. Freivogel and Ted Gest
A new Missouri law passed last year deletes the names of victims and witnesses in court documents making Missouri courts the least transparent in the nation, experts say. Among the witness names deleted are police officers.
Eugene Volokh, a nationally known libertarian legal commentator, called the law “a very serious problem” under the headline “Missouri ‘Stealth Statute’ Requires Redaction of All Witness and Victim Names” in Court Records.”
Paul G. Cassell, a former federal judge and victims rights advocate, said he didn’t know of any law like it in the nation. He wrote in an email, “I am not aware of any jurisdiction mandating such a broad prohibition on use of names. It does seem difficult to justify application of such a rule without narrowing it to circumstances where good reason may well exist for privacy (such as juveniles and sex assault cases).”
Charles Mahoney, president/CEO of the Missouri Broadcasters, said he doesn’t know of another state with such a broad redaction law. He said his organization is concerned the law could impede journalists’ ability to “report the full truth.”
In August the Missouri Press-Bar Commission sent a detailed letter to the Missouri Supreme Court stating it “has serious concerns about the legality, constitutionality, and practicality of this law, and… requests that the Supreme Court stay its implementation, pending study of those issues.”
The court did not issue a stay or respond to the letter. The redaction regime is being implemented not only in court pleadings but also in opinions and court orders.
Missouri has become the “State of Unnamed Persons,” wrote Mark Sableman, a partner at Thompson Coburn and media lawyer who has pressed the Missouri Supreme Court to hold back on implementing the law.
He pointed out that opinions from the state’s appeals court are filled with status words (e.g., “Victim”), relationships (e.g., “Victim’s sister”; “Girlfriend”; “Uncle”), initials (e.g., “D.V. and E.C”), profession (e.g., “Nurse”), and office (e.g., “[State Attorney]” and “[Trial Counsel]”).
“This is so even for the names of public officials, like prosecutors, and other people who expect to be in the public eye, like trial lawyers,” he said. “Some recent court opinions mention scores of witnesses—but none of them, except the parties, is named.
“The same is true of the names of victims,” he said. “They are secret, and do not appear in court decisions. This applies even to murder victims, who are deceased and under the common law have no right of privacy, since that right is confined to the living.”
Nameless court decisions
Redactions sometimes result in confusing accounts in court opinions, making them hard for the public or outsiders to follow.
One recent example is Jolley v. State, handed down by the Missouri Court of Appeals for the Western District on Oct. 31 of this year. Gary Jolley, serving a 30-year sentence for physically abusing members of his large family, was claiming he didn’t get adequate legal representation.
One paragraph of the decision reads: “On April 29, 2022, an evidentiary hearing was held. S.W., A.B., and C.F. testified. S.W. and A.B., Jolley’s daughters, testified that while Jolley was in jail some of Jolley’s family members who testified against him at trial, including C.D., sold items of Jolley’s property and kept the proceeds. S.W. and A.B. testified that C.D. used up to three years’ worth of Jolley’s social security disability payments for her own use. S.W. and A.B. stated they were never contacted by Jolley’s attorney, but they both would have testified at trial if they were contacted.”
Jolley lost the appeal.
Police officers are nameless because they are witnesses. A police officer accused of changing his account of a St. Louis shooting is “Officer P” throughout Kurtis C. Watkins v. State of Missouri, a Nov. 28 decision by the Missouri Court of Appeals for the Eastern District.
Watkins’ conviction rested almost entirely on Officer P’s testimony. The appeals court decision states, “Officer P’s testimony changed between the first and second trials from saying he was not sure that the initial shooter he saw in the alley was (Watkins), to later saying he was sure.” The first trial ended in a mistrial and Watkins was convicted in the second.
Watkins alleged “ineffective assistance of trial counsel for failing to call Witness Friend, Witness J, and CoDefendant as witnesses at trial.” The trial counsel, Witness Friend, Witness J and CoDefendant are not named. Witness Friend apparently said he was with Watkins at the time of the shooting and the co-defendant said Watkins wasn’t present for the shooting. Watkins lost his appeal.
Another example of the redaction of police officer names is the September 2023 decision of Foltz v. City of St. Louis. Foltz is Officer Zachariah Foltz, a former St. Louis Police Officer fired for refusing to talk to criminal investigators about what he saw in his squad car where he was present when a fellow officer allegedly had a “sexual relationship” with a 12-year-old girl.
The officer accused of having the relationship is referred to as Officer SK because of the new redaction law. The names of other police officers who questioned Foltz also were redacted.
One passage reads: “Officer Foltz also sent Lieutenant WB an email accusing Lieutenant WB of attempting to push him out of the department because he would not ‘lick your boot’ and sabotaging his attempts to get another job…Major MS terminated Officer Foltz…(stating) failure to cooperate in the criminal investigation violated the Code of Ethics, was contrary to the Department’s purpose of investigating crime and holding people accountable for criminal acts, and suggested to the public that the police department holds its officers to different standards than other citizens.”
Critics of the redaction law say that scrubbing court decisions of police officers’ names will make it hard to hold police accountable for wrongdoing.
Uncertain origins of law
The new redaction law grew out of the January 2017 State of the Judiciary address by then-Chief Justice Patricia Breckenridge expressing concern that the expansion of the number of court documents available on Case.net, the online repository for court records, would lead to exponentially broader access to information that had existed in the “practical obscurity” of documents being available only at the local courthouse.
She noted many statutes governing confidentiality were enacted at a time when “public” meant available in paper form at a clerk’s office, not instantly available to anyone anywhere. She said the court wanted the legislature to have the opportunity to reexamine statutes governing public case documents to determine if they reflect the will of the legislature and the people.
The reference to the “practical obscurity” of public records in courthouses comes from language in a 1989 U.S. Supreme Court decision involving the federal Freedom of Information Act. First Amendment lawyers regard the language as inconsistent with a line of First Amendment decisions opening courts and court records to the public.
Breckenridge’s call for legislative action was followed by a host of proposals, most of which did not pass immediately.
At the end of its 2023 session, the Missouri Legislature passed SB 103, an omnibus bill covering many issues and including the redaction language, some of which was taken from bills introduced by Sen. Bill Eigel, R-Weldon Spring, and Rep. Adam Schnelting, R-St. Charles.
Eigel and Schnelting were responding to a constituent, Kara Elms, who testified at a Feb. 13 session of the House Judiciary Committee that a young person’s name should not be in Case.net. Her son had been injured at a summer camp and the family had sued to get his medical expenses covered. She didn’t want her son’s name to be permanently entered in court records because of the mishap.
There was no testimony at the February Judiciary Committee hearing relating to the much broader redaction language eventually passed in May that removes the names of adult witnesses and victims.
A spokeswoman for Eigel said he was responding to Elms’ concerns about children’s names in court records, but she didn’t know the origins of the broader redaction language. Schnelting refused to respond to repeated requests for comment.
The original language of SB 103 said nothing about redactions. Sableman writes that it appears the law was “never directly discussed or debated at committee or on the floor of either chamber.” Legislative reference services were not able to provide any record of detailed legislative consideration of the final language.
One of the main legal defects in the law, says the Press-Bar Commission, is that it is part of an omnibus bill covering all sorts of subjects. Under the Missouri Constitution, the legislature can only change court rules with “a law limited to the purpose.” An omnibus bill is not a law of limited purpose.
Before passage of SB 103, redactions were limited to confidential matters relating to family law and juvenile proceedings. But SB 103 extends “redaction requirements into practically all cases, criminal and civil,” the Press-Bar Commission writes, “multiplying them dramatically, because all criminal cases involve victims whose names would have to be redacted, and practically all cases involve witnesses, whose names and identifying information would have to be redacted.”
Among those witnesses whose names are redacted: law enforcement officials, public officials, corporate officers, expert witnesses, doctors, nurses, social workers, pharmacists, attorneys, engineers and prisoners.
“The ordinary witness in the ordinary case understands that lawsuits and trials are public proceedings,” wrote the Press-Bar Commission. “Indeed, it is a basic rule of civics, taught when civics education is taught, that our judicial system may command ‘every person’s evidence’ and that it is a civic duty and responsibility for a citizen to testify when needed. Most people consider their actions in satisfying this obligation as a matter of duty and pride, not one of shame.”
The Press-Bar Commission also points out that the language of the law specifically states, “The Missouri supreme court shall promulgate rules to administer this section.”
But it hasn’t promulgated any rules.
Support for redaction
Rep. Justin Hicks, R-Lake St. Louis, has spoken out in favor of the redaction requirement, telling Missouri Lawyers Media:
“The concern overall is there is an overabundance of too much personal, identifiable information out there. This is where we’re trying to claw back on that area. However, the new requirements also can mean a lot more work. And, with two sets of regulations that might apply to a given case, exactly what should and should not be included isn’t always clear.”
Hicks, though, was recently criticized by an opponent in the Republican primary who posted records of a 2010 complaint against Hicks by a woman who said he choked her when he was 17. Hicks is a rising political figure in the Republican Party who received the Freshman of the Year Awards from House Speaker Dean Plocher in May.
Hicks’ opponent posted the 2010 restraining order against Hicks. Court orders are among the court documents covered by the 2023 redaction law he supported. Hicks did not mention the 2010 court order when explaining his support for redaction. He could not be reached for comment.
Jean Maneke, attorney for the Missouri Press Association, also criticizes the redaction law. She told Missouri Lawyers Weekly, that the increased restrictions will make it more difficult for reporters to confirm the identity of criminal suspects, particularly those with common last names.
“I won’t know if the rapist in my neighborhood is 18 or 58,” she said. “And if his name is John Smith, I’m going to have a tough time figuring out who it is.”
The objections that the Press-Bar Commission filed against the redaction law come in the context of a growing number of closed court proceedings to which the Missouri Broadcasters and Missouri Press Association have objected.
In a Dec. 13, 2022, letter to the Missouri Supreme Court, the two media groups proposed a new Missouri Supreme Court rule that would allow court proceedings to be closed only for “compelling” reasons and after a court hearing where the media have a chance to challenge closure.
The Missouri Supreme Court has not responded to the year-old letter and proposal.
The letter, written by Sableman and Maneke, lays out the legal basis for open court proceedings. The Missouri constitution provides: “Missouri courts of justice shall be open to every person.” Missouri state law provides, “the sitting of every court shall be public and every person may freely attend same” and “all trials upon the merits shall be conducted in open court.”
In addition there is a string of U.S. Supreme Court decisions recognizing First Amendment protection for open courts and court records.
Yet the media lawyers cited numerous Missouri cases in which proceedings have been kept from the public:
- In the case of Spear v. Quinn, Volokh, the libertarian law professor from UCLA who criticized the redaction statute, was denied access to a Missouri case file where a constitutionally questionable order was issued to Google to take down material from the internet.
- In another case, a family was frustrated when the case of their sister’s murder was sealed for more than a year before trial, and they were prohibited from speaking about the case in which the killer received what they thought was a meager 20-year sentence.
- A case claiming police assaulted a customer outside a St. Louis bar, an incident widely publicized, was closed to the public.
- A St. Louis County judge sealed a lawsuit filed in February 2017 by a former Hazelwood Central High student’s mother who alleged her daughter was sexually assaulted by another student during school. A month after it was filed it vanished from Case.net.
- A former law partner’s lawsuit against prominent attorney Jerry Schlichter and his law firm was sealed from public view by Judge Jason Sengheiser after Schlichter and his firm argued it contained highly confidential material.
The Missouri Supreme Court would not comment on the new redaction law or on correspondence regarding it. Nor would it comment on last year’s letter asking for new protections for open court proceedings.
Beth Riggert, the court spokesperson, said “the Court welcomes thoughtful suggestions regarding its rules of practice and procedure. Such communications are best directed to the clerk, who then can ensure the information is directed appropriately and can be considered by the Court. Any actions the Court may take are expressed through its orders, typically without additional comment.”
Ted Gest is president of Criminal Justice Journalists and editor of the daily newsletter Crime and Justice News (ncja.org/crime-and-justice-news). William H. Freivogel is a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar.