ACLU has multiple cases pending over the sealing of court records
By Jessica Shumaker
The Daily Record Newswire
ST. LOUIS, MO — A recent federal appeals court ruling in favor of the top official of Missouri’s Department of Corrections in a case challenging death penalty secrecy isn’t the end of the road for the American Civil Liberties Union of Missouri.
The organization still has multiple cases pending in state and federal courts challenging the state’s response to its Sunshine Law requests and the sealing of court records.
Tony Rothert, legal director for the ACLU, said the work, already more than two years in the making, still has a few more years to go as the organization awaits more judgments and exhausts all appeal options.
The case that recently ended was Balogh v. George Lombardi. On March 11, the 8th U.S. Circuit Court of Appeals reversed a lower court’s decision denying immunity to Lombardi, the director of the Department of Corrections, in a lawsuit over death penalty records sought by the ACLU.
Rothert said the ruling was not unexpected.
“The ruling is not a great surprise to us given recent cases out of the 8th Circuit on 11th Amendment immunity,” he said.
Lombardi was represented by the Attorney General’s Office, which declined to comment on the ruling.
First Amendment challenge
Through plaintiff Diane Balogh, an ACLU employee, the group challenged a state law that prohibits the disclosure of the identity of any current or former execution team members without the approval of the director.
Specifically, it alleged the law is unconstitutional as applied to records the group obtained through the Missouri Sunshine Law and posted on its website.
The suit goes back to October 2013, when the department adopted an execution protocol that redefined members of the execution team to include anyone prescribing or supplying execution drugs. Prior to, and the day of that adoption, the department provided the ACLU with records responsive to a request from the group under the Sunshine Law.
According to the opinion, the ACLU alleged it learned of the change in protocol after it occurred and realized it had published records on its website that may have identified current or former members of an execution team and removed the records from their site.
The group sought an injunction and declaratory judgment against the director, arguing the statute violated its First Amendment and due process rights.
Lombardi filed a motion for summary judgment arguing he was immune under the 11th Amendment, the ACLU lacked standing and the ACLU’s claims failed as a matter of law. The district court denied immunity, prompting his appeal.
The 8th Circuit concluded that the ACLU lacked standing, noting that although the group has shown “an objectively reasonable fear of legal action that chills its speech,” the injury is not fairly traceable to Lombardi, because he does not possess any statutory authority to enforce the law.
In the opinion, written by Chief Judge William Jay Riley, the court determined that because the director lacks authority to enforce the law, he is also immune under the 11th Amendment, which generally bars suits by private citizens against a state in federal court.
Pending cases
Rothert noted the 8th Circuit case is one of several in which the organization is working “to pierce the veil of secrecy that Missouri has placed around the death penalty.”
The group has three Sunshine Law cases pending in Cole County Circuit Court.
In one, it sought state records on how the director selects execution witnesses in an effort to possibly challenge the process. The state returned heavily redacted records, which the group challenged.
The court sided with the group in late 2015, finding the DOC knowingly violated the Sunshine Law. Rothert said the group is hoping to get the requested records soon.
The records central to Balogh are at the center of a second case. In that case, the ACLU requested information about the state’s execution drugs. When the DOC didn’t release the records, they sued.
Rothert said when the group finally received the records, they found that the state had received the drug propofol by mistake. After the information was revealed through the lawsuit, the state returned the drug.
Rothert said the question remains of whether the state’s failure to disclose that information was intentional. Court records show arguments were heard in late January for a motion for summary judgment.
A third case the ACLU is involved in will resolve the question of whether the director of corrections has the authority to include pharmacies supplying drugs to the defined execution team. The case is tied to requests for information about the state’s source of execution drugs.
Rothert said the court ruled on summary judgment motions that the director had gone outside of what the statute allows. The group is waiting for a final judgment.
The ACLU is also involved in two federal cases, where it is seeking to unseal court records.
‘Significant departure’ from First Amendment
Rothert said Balogh ultimately served two purposes, both to resolve an internal dilemma of whether to post the records and risk being sued by an execution team member and to show the state’s use of secrecy.
“The bigger purpose was to highlight… the extra layers of secrecy that the state is trying to put around how it carries out executions going so far as to create a law that allows a vendor of the state to sue if their name is made public,” he said.
He said the ruling means even if the state provides the records that name the vendor, the vendor has the right to sue.
“It’s a significant departure from what the First Amendment has allowed in the past,” he said. “The court said there’s no way to challenge it unless you wait to be sued.”
That lack of standing was also seen in another case opposing the state’s execution protocol, Joan Bray et al. v. Missouri Department of Corrections et al.
In that case, a former state legislator filed a taxpayer standing lawsuit in Cole County challenging the state’s use of a compounded copy of an execution drug. It was dismissed in part for a lack of standing.
Justin K. Gelfand of Capes Sokol in St. Louis is representing the plaintiffs in the case, which will be before the Western District Court of Appeals in May.
Gelfand said the 8th Circuit ruling is “yet another case where a plaintiff raising a serious, meritorious challenge to Missouri's method of execution has been found to lack standing.”
“The bottom line is that somebody has to have standing to challenge Missouri's method of execution because nobody is above the law and that applies with full force to state actors,” he said.
