What a First Amendment lawyer says about a judge’s sealing of a civil lawsuit over the deaths of Girl Scouts

A judge acted unconstitutionally when he completely sealed the records of a civil case involving a crash on the Kansas Turnpike that killed three Topeka Girl Scouts, according to a lawyer who runs a law firm specializing in First Amendment law.

Jeff Elder, chief judge of the state’s 2nd Judicial District, which includes Pottawatomie County, recently sealed the case file, Pottawatomie County Circuit Court Clerk McKenna Smith told The Capital-Journal on Monday.

As a result, the public currently has no way to “know what’s going on” with the lawsuit, which is its right in a civil proceeding, said Max Kautsch, a Lawrence attorney and former president of the Kansas Coalition for Open Government.

“The court should reconsider its order to correct this violation of First Amendment civil rights,” he told The Capital-Journal.

Amber Peery is scheduled to go on trial Monday in Shawnee County District Court on three counts of involuntary manslaughter in connection with the deaths of three passengers who were riding in the van she was driving at the time of the October 2022 crash in southwest Shawnee County.

What are the facts about the Kansas Turnpike accident lawsuit?

Attorney L.J. Leatherman of Palmer Law Group in Topeka filed a motion April 17 in the 2nd District Court of Pottawatomie County saying all plaintiffs and defendants in the civil lawsuit related to the Turnpike accident have entered into a confidential settlement agreement.

The Girl Scouts of Northeast Kansas and Northwest Missouri organization is among the defendants in the lawsuit, which is related to the crash that the Kansas Highway Patrol says killed Laila El Azri and Kylie Lunn, both 9, and Brooklyn Peery, 8, as they were traveling to a Girl Scout event in a van driven by Amber Perry, Brooklyn’s mother.

Amber Peery and two other passengers — her daughters Carrington Peery, then 5, and Gabriella Ponomarez, then 9 — were injured but survived, the Highway Patrol said.

The full, updated names of Laila El Azri Ennassari and Gabriella Casas were provided in the lawsuit filed April 17 by Leatherman, representing Kylie’s mother, plaintiff Tiffany Lunn.

Lawyer: Court sets ‘high bar’ for sealing documents

Leatherman’s motion included a request to schedule a hearing at which a judge would approve a settlement that would determine how income and attorney fees would be divided.

A court document filed May 7 said Elder will consider approving the deal on June 18.

Late last month, the Capital-Journal noticed that all records related to the case had been removed from the public access portal of the U.S. District Court of Kansas. The newspaper called Smith’s clerk, who said the case files had been sealed.

On Monday, Kautsch dissented from the decision, saying the alleged openness of the proceedings was apparent from the outset, given that the complaint and several other documents were publicly available before Elder issued his ruling.

“As a result, the court will have to meet a high standard before it can seal court records under the First Amendment,” he said.

Kautsch cited the 1984 U.S. Supreme Court ruling in Press-Enterprise Co. v. Superior Court, which held that court records in a purportedly public proceeding may be sealed only if the court finds there is a “compelling interest” and sealing is “essential to preserving higher values ​​and is narrowly tailored to serve that interest.”

“But here, since the sealing order was sealed, there is no way for the public to know what ‘overriding interest’ prompted the case to be closed,” he said. “Moreover, given that all the documents in the case were sealed, it is hard to imagine how the court’s order is narrowly tailored enough to survive constitutional review.”

Judge Considers Allowing Cameras in Courtroom During Driver’s Criminal Trial

Deliberations in the criminal trial of Amber Peery are scheduled to begin at 9 a.m. Monday in Shawnee County District Court.

Court records show that on June 25, an anonymous television station filed a request with District Judge Jessica Heinen, who will preside over the case, for permission to bring a video camera and a still camera into the courtroom.

Prosecution and defense attorneys filed motions June 26 to bar cameras from being used in court in connection with the case. Court records showed Heinen had not ruled on the motions by Wednesday evening.

What was the involvement of the Girl Scouts in the accident in which three people died?

Peery’s five passengers were members of Daisy Troop 5567 from Topeka. They were headed to a scout event in Tonganox.

The crash occurred near an opening in the wall separating northbound and southbound lanes, a wall used by law enforcement, emergency services and Kansas Turnpike Authority workers to make turns.

According to testimony at a Nov. 30 preliminary hearing, Peery’s van was part of a three-vehicle caravan heading to the event in Tonganox.

Amelia Bailey testified on November 30 that Margaret Jones was alone in the lead car, Bailey was behind her with five Girl Scouts passengers in her car, and Peery was in the back as they entered the southbound Kansas Turnpike at the South Topeka interchange.

But Jones pulled over and stopped on the right shoulder, Bailey pulled up behind her and Jones then told Bailey on her cellphone that they were going the wrong way and had to turn around, Bailey testified. Meanwhile, she said, Peery passed them going south.

Bailey testified that she followed Jones, and the two turned around and drove north on the highway. They “had to” use an opening in the guard wall, Bailey said. There are no exits between the South Topeka interchange and the Admire interchange on the Turnpike, 30 miles to the southwest.

Bailey said she then called Peery and told her she needed to find a place to turn around.

Video footage shown at Peery’s preliminary hearing shows she attempted to make a U-turn from the right southbound lane into the left southbound lane of the Turnpike to go through an opening in a guard wall.

Peery’s vehicle was then struck on the driver’s side by a semitrailer driven by 72-year-old Robert Russell of Huntsville, Alabama, who was traveling south in the left lane, the Kansas Highway Patrol report said.

Prosecutors have requested that Russell, who lives in Alabama and has prostate cancer that has spread to his bones, appear via Zoom at Peery’s criminal trial, while the defense has objected, court records show. Heinen is expected to argue the matter during a 10 a.m. hearing Friday.

Contact Tim Hrenchir at [email protected] or 785-213-5934.

This article originally appeared in Topeka Capital-Journal: Attorney challenges sealing of records in Topeka Girl Scouts death lawsuit