Hospital Attempts to Block Media Coverage of Sunshine Law Trial
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Cameras in the Courtroom Request Granted by Judge
By Echo Menges
The First Amendment Clinic legal team has won the first of what could be a series of courtroom battles for the media to fully attend the upcoming Sunshine Law-focused bench trial to be held in Scotland County on Sept. 23 (Case No. 23SE-CC00015 – Randall Tobler, MD v. Scotland County Memorial et al.).
On Wednesday, Sept. 4, Judge Rick Roberts, presiding judge of the First Judicial Circuit, ruled that the media is allowed to take still photos and video record the bench trial. The ruling was given at the end of the hearing, which was scheduled to address any objections from Dr. Tobler or the hospital in response to a cameras-in-the-courtroom request submitted by this reporter on Aug. 21.
Ahead of the hearing, both sides of the lawsuit were notified about the request by Judge Roberts on Aug. 23, given until 4 p.m. on Sept. 3 to file any objections to the request, and notified that a hearing would be held to address the matter the following morning, on Sept. 4.
Attorney Lowell Pearson, from the Jefferson City-based law firm Husch Blackwell, filed a response with no objections to the request on behalf of Dr. Tobler on Aug. 27.
Two days later, on Aug. 29, the First Amendment Clinic entered the case on a limited basis to represent Echo Menges during the cameras-in-the-courtroom hearing.
The First Amendment Clinic is a law student-powered legal team from Washington University in St. Louis Law School. The clinic focuses on freedom of speech, press, and assembly, offering its services free of charge on a case-by-case basis.
On Sept. 3, just before the deadline, attorneys Eric Packel and Meghan Hanson from the law firm Polsinelli, which has offices in major cities across the country, including St. Louis, filed a series of objections to the media request and objected to media coverage or the presence of a reporter during the trial on behalf of the hospital.
“Defendant Scotland County Memorial Hospital (the ‘Hospital’) objects to Echo Menges’ Aug. 21, 2024, media request because permitting media coverage of the bench trial in this matter will violate protections afforded by Missouri’s Sunshine Law, Mo. Rev. Stat. § 610.021, to closed meetings of public governmental bodies,” stated the court filing.
The filing also asserted that “evidence concerning the hospital’s closed meetings is not relevant and should not be admitted. To the extent, however, that plaintiff’s allegations somehow implicate closed meetings of the Scotland County Memorial Hospital District Board that occurred on Aug. 15, 2022, Aug. 16, 2022, and Aug. 18, 2022, media access should be denied.”
The filing concluded: “The hospital respectfully objects to the presence of a reporter during the [Sept.] 23, 2024, bench trial on plaintiff’s claim of a Sunshine Law violation.”
“The reason for the objection is simply so that the closed meeting stays closed. This isn’t just a way for the media and others to come into a meeting that was closed on purpose,” Packel told Judge Roberts during the Sept. 4 hearing, which was held on Webex—the court’s video conferencing system. “The second part of the concern is the reason for the closed meeting was due to financial and legal concerns. In order to provide evidence about that, it is going to have to necessarily get into part of what the closed meeting was about. Again, under the Sunshine Law, those discussions are protected and privileged, and it is a recognized exemption under the Sunshine Law.”
Pearson asserted that he could be agreeable to closing portions of the trial to the media but was not in agreement with closing the trial completely.
“I cannot represent that there will be zero evidence about what happened in the closed meeting. Certainly, I think that the reasons for it are an issue. I don’t, however, think that leads to the conclusion that a blanket barring of the media is warranted. It’s a bench trial. If we have some testimony that Mr. Packel thinks is going to be closed under the Sunshine Law, I’m certainly happy to communicate with him and tell him when I plan to elicit that testimony, and Your Honor could exclude the media, and probably no one would object to that, at least none of the parties. The media might. I think we’re taking a meat ax to a situation that might ultimately require a scalpel. I’ve never in my career asked that the media not be allowed to record a hearing. I’ve had a couple of times down here in Jeff City where there’s been sensitive testimony. They can leave for a few moments. That would be our position,” Pearson told the judge.
Counsel for Menges, law student Rachel Sharma and Associate Professor of Practice and Director of the First Amendment Clinic Lisa Hoppenjans, represented Menges at the hearing.
“First, looking at her specific request and the equipment she wishes to bring into court, she is the editor of The Edina Sentinel and she has made a request for video and still images of this trial. It is very important to the community, which is evident by her two-year extensive reporting of it. She has filed notice of this and she wishes to bring in three things: a tripod to hold her phone, the phone itself to record, which will be on airplane mode to prevent disruptions to the court, and then she requests a camera, which has been altered to remain silent under Rule 16.04(a) (1). All of this will be unobtrusive to the court’s functioning, and she will also take additional measures not to interrupt proceedings, such as not recording conferences at the bench, which is stated in the rule,” Sharma told the court.
“It seems to me that they are out of the scope of what is properly an objection under Operating Rule 16, which governs cameras in the courtroom and media coverage and electronics to have that media coverage. It seems to me they are asking for a fully closed courtroom, or not having a reporter present in the courtroom to even take notes and to report on what is going on in this trial, which is her right. The right to be present in the courtroom is mandated by the U.S. Constitution, the Missouri Constitution, and multiple Missouri statutes separate from Court Operating Rule 16.”
“They seem to be objecting to Ms. Menges’ presence during particular testimony, and that right to be present and report on these proceedings without electronic means is not governed by Rule 16. It’s governed by the First Amendment to the U.S. Constitution, by the Missouri Constitution, and by clear Missouri statutes governing civil trials, which say all trials upon the merits should be conducted in open court. This is a right that exists completely independently and isn’t governed by Rule 16 at all. If the court was inclined to entertain a broader request to close part of the trial proceedings, things that are coming into evidence as part of trial, we certainly would request the opportunity to be able to fully brief that because we think there’s a full body of case law that’s implicated that hasn’t been properly briefed before the court at this point,” Hoppenjans added.
“Regarding the Sunshine Law, I’ll also just note briefly, the Sunshine Law does, it’s true, authorize a governmental body to close certain meetings and records for certain reasons, but 610.021 is very clear. It says, except to the extent disclosure is otherwise required by law. So, when there’s a law that mandates the information be public, that will trump the exceptions in 610.021. Here, we’ve got a clear Missouri statute that states trials upon the merits are to be conducted in open court. Again, that’s 510.020, which applies to trials in civil proceedings.”
In response, Packel told the court, “If the proper thing is to excuse people during testimony about the closed meeting, then that’s fine. Again, we only have half a day for this bench trial. I don’t know how much it will please the court to do that. The public does not have a right to go inside of closed meetings, and as I mentioned earlier, it’s a Class C misdemeanor for someone to record a closed meeting. This would be the same thing. It would just be another way of getting inside of a closed meeting. The legislature was clear. The reason for that is so that governmental bodies can make these important decisions with free-flowing communications among board members. That is the primary concern. As far as being there for other parts, I think it will be pretty boring. That’s not the basis of the objection. The objection is allowing the media and others into closed meetings, which are privileged and protected under the Sunshine Law.”
After listening to all three sides of the issue, Judge Roberts issued his decision, saying, “The court has heard the argument of counsel. At this time, the court will sustain Ms. Menges’ request to bring her equipment into the courtroom to attend the trial. The court agrees with Mr. Pearson that if there is material or objections in which the court should be cleared, those are always available to counsel, and that is something we would consider at the time the evidence is being offered. If the counsel for the media outlet wishes to brief an issue in anticipation of a motion in the future, they may do so. There is nothing in that request that would indicate that Ms. Menges is not allowed to be there personally, and there has been no move to close the courtroom at this time, although a motion has been made to try to limit the scope of the hearing. But again, we will take that up at the time of the trial. So at this time, Ms. Menges, it will be the order of the court that you will be allowed to attend the proceedings. You will be allowed to bring the equipment you listed in your request, and you will be allowed to represent the media in these proceedings. The court will note for the record that Ms. Menges has been here every time we have had a hearing. She has been allowed to attend it and has not made a request to bring her equipment into the courtroom. Again, the court will reserve the right to entertain objections from counsel when evidence is being presented. If counsel for the media outlet wishes to brief that issue in anticipation of those rulings that may come up later, they may do so. That will be the order of the court.”
Echo Menges’ First Amendment Clinic legal team consists of law students Rachel Sharma, Elia Despradel, Emma Eaton, Legal Fellow Benjamin Wilson, and Associate Professor of Practice and Director Lisa Hoppenjans.
The court’s audio recording of the Sept. 4 cameras-in-the-courtroom hearing has been obtained by the NEMOnews Media Group. It will be published online at edinasentinel.com and memphisdemocrat. com this week, along with the supporting court documents, which were filed ahead of the hearing.
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