A judge acted unconstitutionally when he completely sealed the record of a civil lawsuit over a Kansas Turnpike crash that killed three Topeka Girl Scouts, contends an attorney who maintains a law practice focused on the First Amendment.
Jeff Elder, chief judge of the state’s 2nd Judicial District, which includes Pottawatomie County, recently sealed the docket in that case, Pottawatomie County District Court Clerk McKenna Smith told The Capital-Journal on Monday.
As a result, there is currently no way for the public to “know what’s going on” with the lawsuit, as is their 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 violation of the public’s First Amendment rights,” he told The Capital-Journal.
Amber Peery is set to stand trial starting Monday on criminal charges in Shawnee County District Court that include three counts of involuntary manslaughter related to the deaths of three passengers who were riding in the pickup truck she was driving at the time of the October 2022 crash in southwest Shawnee County.
What are the facts surrounding the Kansas Turnpike accident lawsuit?
Attorney LJ Leatherman of the Palmer Law Group in Topeka filed a motion April 17 in Pottawatomie County Second District Court saying all plaintiffs and defendants have reached a confidential settlement agreement in a civil lawsuit related to the Turnpike crash.
The Girl Scouts of Northeast Kansas and Northwest Missouri are among those named in the lawsuit, which is tied to a crash that the Kansas Highway Patrol says killed Laila El Azri and Kylie Lunn, both 9, and Brooklyn Peery, 8, while they were traveling 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 — were injured but survived, the highway patrol said.
The updated full names of Laila El Azri Ennassari and Gabriella Casas were provided in the petition for complaint filed April 17 by Leatherman, who represents Kylie’s mother, plaintiff Tiffany Lunn.
Lawyer: Court faces ‘high standards’ in terms of sealing documents
Leatherman’s motion requested the scheduling of a hearing at which a judge would approve the settlement agreement detailing the distribution of proceeds and attorneys’ fees.
A court document filed May 7 said Elder would consider approving the deal on June 18.
The Capital-Journal learned late last month that all records related to the case had been removed from the Kansas District Court’s public access website. The newspaper called Clerk Smith, who told it the case file had been sealed.
Kautsch on Monday expressed his disagreement with that decision, saying the allegedly open nature of the proceedings in question was evident from the start, given that the complaint and several other documents were publicly available before Elder’s ruling.
“As a result, the court faces a high bar before it can seal court records pursuant to the First Amendment,” he said.
Kautsch cited the U.S. Supreme Court’s 1984 decision in Press-Enterprise Co. v. Superior Court, which said that a court record in a presumptively open proceeding may be sealed only if the court finds there is “an overriding interest” that sealing is “essential to preserving higher values and is specifically designed to serve that interest.”
“But in this case, with the order sealing the case itself, there is no way for the public to know what ‘overriding interest’ made the closure necessary,” he said. “Moreover, since all records in the case were sealed, it is difficult to imagine how the court’s order is narrow enough to pass constitutional muster.”
Judge considers allowing cameras in courtroom in driver’s criminal trial
Proceedings in Amber Peery’s criminal trial are scheduled to begin at 9 a.m. Monday in Shawnee County District Court.
Court records show an unnamed television station filed a petition on June 25 asking District Judge Jessica Heinen, who will preside over the case, for permission to have a video camera and a still camera in the courtroom.
On June 26, attorneys for the prosecution and defense filed papers requesting that cameras be banned in court in connection with the case. Court records showed Heinen had not issued a ruling on those requests as of Wednesday evening.
How were Girl Scouts involved in the triple fatality crash?
Peery’s five passengers were part of Daisy Troop 5567 of Topeka. They had gone to a Girl Scout event in Tonganoxie.
The crash occurred near an opening in a turnpike barrier wall between its northbound and southbound lanes that is used for turnarounds by law enforcement officers, emergency workers and Kansas Turnpike Authority employees.
Peery’s truck was part of a three-vehicle caravan headed to the Tonganoxie event, according to testimony given at the Nov. 30 preliminary hearing.
Amelia Bailey testified on Nov. 30 that Margaret Jones was driving alone in the lead vehicle, Bailey was following with five Girl Scout passengers in her vehicle, and Peery was driving behind as they entered the southbound Kansas Turnpike at its intersection with South Topeka.
But Jones pulled over to the side of the road and stood on the right shoulder, Bailey pulled up behind her and then Jones told Bailey on a cellphone that they were going the wrong way and should turn around, Bailey testified. Meanwhile, she said, Peery passed them heading south.
Bailey testified that she followed Jones and that the two turned around and headed north on the highway. “They must have” used an opening in the retaining wall, Bailey said. There are no exit ramps between the South Topeka interchange and the Admire interchange of the highway, 30 miles southwest.
Bailey said he then called Peery and told him he needed to find a place to turn around.
A video played at Peery’s preliminary hearing showed she attempted to make a U-turn from the right southbound lane across the left lane of the southbound turnpike to drive through an opening in the barrier wall.
Peery’s vehicle was then struck in the driver’s side rear quarter panel area by a semi-truck driven by Robert Russell, 72, of Huntsville, Alabama, who was traveling southbound in the left lane, according to a Kansas Highway Patrol accident report.
Prosecutors have asked that Russell, who lives in Alabama and suffers from prostate cancer that has metastasized to his bones, appear via Zoom at Peery’s criminal trial, while the defense has objected to that, according to court records. Heinen is expected to address the matter during a hearing at 10 a.m. Friday.
Contact Tim Hrenchir at threnchir@gannett.com or 785-213-5934.