A judge acted unconstitutionally when he sealed the case file entirely for a civil suit over a Kansas Turnpike crash that killed three Topeka Girl Scouts, contends an attorney who maintains a First Amendment-focused law practice.
Jeff Elder, chief judge for the state's 2nd Judicial District, which includes Pottawatomie County, recently sealed the file for that case, Pottawatomie County District Court Clerk McKenna Smith told The Capital-Journal on Monday.
Consequently, no way currently exists for the public to "know what is going on" with the suit, as is its right in a civil case, 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 infringement on the public's First Amendment rights," he told The Capital-Journal.
Amber Peery is to be tried beginning Aug. 12 on Shawnee County District Court criminal charges that include three counts of involuntary manslaughter linked to 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.
Peery's trial had been scheduled to begin next Monday before Shawnee County District Court Judge Jessica Heinen postponed it on Friday.
What are the facts regarding Kansas Turnpike crash lawsuit?
Attorney L.J. Leatherman, of Topeka's Palmer Law Group, on April 17 filed a motion in 2nd District Court in Pottawatomie County saying a confidential settlement agreement had been reached by all plaintiffs and defendants in a civil suit linked to the Turnpike crash.
Girl Scouts of Northeast Kansas and Northwest Missouri is among defendants in the suit, which is linked to a crash that the Kansas Highway Patrol said killed Laila El Azri and Kylie Lunn, both 9, and Brooklyn Peery 8, as they rode to a Girl Scout event in a van driven by Amber Perry, Brooklyn's mother.
Amber Peery and her two other passengers — her daughter, Carrington Peery, then 5, and Gabriella Ponomarez, then 9 — suffered injuries but survived, the highway patrol said.
Updated full names of Laila El Azri Ennassari and Gabriella Casas were given in the lawsuit petition filed April 17 by Leatherman, who represents Kylie's mother, plaintiff Tiffany Lunn.
Attorney: Court faces 'high bar' in terms of sealing documents
Leatherman's motion asked for the scheduling of a hearing at which a judge would approve the settlement agreement spelling out distribution of proceeds and attorney's fees.
A court document filed May 7 said Elder would consider approving the agreement June 18.
The Capital-Journal then noticed late last month that all records regarding the case had been removed from the Kansas District Court website. The newspaper called clerk Smith, who said the case file had been sealed.
Disagreement with that decision was expressed Monday by Kautsch, who said the presumptively open nature of the proceeding involved was apparent since its inception, given that the complaint and several other documents were publicly available prior to Elder's ruling.
"As a result, the court faces a high bar before it can seal court records under the First Amendment," he said.
Kautsch cited the 1984 U.S. Supreme Court decision in the case of Press-Enterprise Co. v. Superior Court as saying that a court record in a presumptively open proceeding can be sealed only if the court finds there is "an overriding interest" that seal is "essential to preserve higher values and is narrowly tailored to serve that interest."
"But here, with the order to seal itself sealed, there is no way for the public to know what 'overriding interest' necessitated closure," he said. "Moreover, given that all the records in the case were sealed, it is hard to imagine how the court's order is sufficiently narrowly tailored to pass constitutional muster."
How were the Girl Scouts involved in triple fatality accident?
Peery's five passengers were part of Topeka's Daisy Troop 5567 . They had been going to a Girl Scouting event in Tonganoxie.
The crash occurred near an opening in a Turnpike barrier wall between its northbound and southbound lanes, which is used to turn around by law enforcement officers, emergency workers and Kansas Turnpike Authority employees.
Peery's van was part of a caravan of three vehicles going to the Tonganoxie event, according to testimony given Nov. 30 at the preliminary hearing.
Amelia Bailey testified Nov. 30 that Margaret Jones drove alone in the lead vehicle, Bailey followed with five Girl Scout passengers in her vehicle and Peery drove at the rear as they entered the Kansas Turnpike going south at its South Topeka interchange.
But Jones pulled over and stopped on the right shoulder, Bailey stopped behind her, then Jones told Bailey by cellphone that they were going the wrong way and needed to turn around, Bailey testified. Meanwhile, she said, Peery passed them going south.
Bailey testified that she followed Jones, and both turned around and went north on the turnpike. They “must have” used an opening in the barrier wall, Bailey said. No off-ramps exist between the Turnpike's South Topeka interchange and Admire interchange, 30 miles to the southwest.
Bailey said she then called Peery and told her she needed to find a place to turn around.
Video shown at Peery's preliminary hearing showed she tried to make a U-turn from the right southbound lane through the southbound Turnpike's left lane to go through an opening in the barrier wall.
Peery's vehicle was then struck on its driver's side rear quarter panel area by a semi-trailer driven by Robert Russell, 72, of Huntsville, Alabama, who was southbound in the left lane, a Kansas Highway Patrol accident report said.
Contact Tim Hrenchir at threnchir@gannett.com or 785-213-5934.
EDITOR'S NOTE: This story was updated Friday morning to reflect that Peery's trial had been postponed until Aug. 12.
This article originally appeared on Topeka Capital-Journal: What First Amendment attorney says about judge sealing civil suit case in Girl Scout deaths
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