IN THE MISSOURI SUPREME COURT _______________________________________________________________________

STATE OF MISSOURI EX REL. ) GOTNEWS, LLC AND ) Supreme Court Case No. ___________ CHARLES C. JOHNSON, ) ) Missouri Court of Appeals E.D. - ) Case No. ED102306 Relators, ) ) St. Louis County Circuit Court ) Case No. 14SL-JU00861 ) (Family/Juvenile Court) vs. ) ) HON. ELLEN SIWAK, ) CIRCUIT COURT JUDGE, DIVISION 11, ) MISSOURI CIRCUIT COURT, ) TWENTY-FIRST JUDICIAL CIRCUIT, ) COUNTY OF ST. LOUIS, ) ) Respondent. ) ________________________________________________________________________

PETITION AND SUGGESTIONS IN SUPPORT

OF A WRIT OF PROHIBITION AND/OR MANDAMUS

________________________________________________________________________ John C. Burns, #66462 David Nowakowski #66481

The Burns Law Firm, LLC 1717 Park Avenue St. Louis, Missouri 63104 314-932-2356- Telephone 314-932-2171- Facsimile john@burns-law-firm.com

david@burns-law-firm.com

Attorneys for Relators

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COME NOW Relators GotNews, LLC (GotNews.Com), a California limited

liability company and owner of GotNews.Com, an Internet-based newspaper, and Charles

C. Johnson (Johnson), a professional journalist and president of GotNews.Com, and for

their Petition and suggestions in support of a writ of prohibition and/or mandamus, state:

RELIEF SOUGHT

Relators hereby seek preliminary and permanent writs of prohibition and/or

mandamus to vacate Respondents September 9, 2014 Order denying Relators request

for Michael Brown Jr.s complete juvenile records, and to compel Respondent to release

the complete juvenile records of Michael Brown Jr., date of birth May 20, 1996, and any

and all further relief deemed just and proper by This Court.

INTRODUCTION

This Court has previously held in a landmark public access to information case

that there is a presumptive right of access to court records, and that an abuse of discretion

is present when trial court orders do not articulate specific reasons for the closure of

records. Pulitzer Publishing Co. v. Transit Casualty Co., 43 S.W.3d 293, 300 (Mo. banc

2001). Although the rule imposes a presumption that records are open to the pubic, there

is an express exception for records that are confidential pursuant to court order.

Nevertheless, the presumption of openness is intended to inform the decision of whether

to seal the records in the first place, or to unseal the records if the justification for

sealing the records abates. The policy supporting the presumption as reflected in the

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rule merits repeating: Justice is best served when it is done within full view of those to

whom all courts are responsible the public. On the basis of that policy, and considering

the substantial authority from other courts this Court affirms, subject to the exceptions

of Court Operating Rule 2, that there is a presumption in favor of the publics right of

access to court records and that the presumption cannot be overcome absent a

compelling justification that the records should be closed. Id., at 301. (collecting cases)

(emphasis added). There are important exceptions that limit the presumption of open

records when sufficiently important interests outweigh the publics right of access

Where there are higher interests favoring nondisclosure, courts and the legislature have

routinely seen fit to close some public records In order to close court or other public

records, however, a court in its order must identify specific and tangible threats to

important values in order to override the importance of the public right of access

Vague or uncertain threats claimed by one party normally would not justify closure. Id.,

at 302. (emphasis added).

In the present case, Respondent failed to present any justification, let alone a

compelling justification for denying Relators request for Michael Browns juvenile

records. Even if Michael Browns juvenile records were once properly withheld from the

Public while he lived, the justification for sealing his records abate[d] upon his death.

Relators agree with This Court that justice is indeed best served when it is done within

full view of those to whom all courts are responsible - the Public. For this reason,

Respondent must be compelled to turn over Michael Browns juvenile records, redacting

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the records as necessary to protect the identities of any living children.

The privacy protections afforded to juveniles in V.A.M.S. Chapter 211 are

exclusive, non-transferable privileges, which exist solely to protect living juveniles from

having their records used against them in civil or criminal prosecutions, to promote a

candid and effective relationship between the juvenile and juvenile officer, and to prevent

the records from needlessly stunting the juveniles prospects of becoming a productive

member of society. The privilege is not absolute, and a variety of state and private

interests can remove the privilege. The privilege can also be voluntarily waived.

Michael Brown, Jr. can never be prosecuted in any court of law. He cannot be

subject to civil suit. He cannot speak with his juvenile officer. He can never be

rehabilitated. He will never go to technical school or apply for a job. His future prospects

were eliminated. In short, the purpose of the statutory privacy protections is completely

impracticable and utterly moot. But it is not simply that the purpose of the statute cannot

ever be achieved. The statute is inapplicable to the juvenile records of deceased adults

who were for a discrete period during their lifetimes under the jurisdiction of the juvenile

court.

Disclosing Michael Browns records poses no risk to the other living juveniles,

considered as a vague group in the abstract. To the extent any specific children could be

harmed, the juvenile court could easily review the records in-camera, and redact as

necessary. However, Respondent did not even attempt to do this. Respondent summarily

denied Relators request for Browns records without any explanation at all.

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It is hard to imagine what interest Respondent could possibly be defending or

advancing through denying Relators request for the Brown records - a request made on

behalf of the Public. The juvenile court is not now and never was intended to referee the

legacies of deceased individuals. Nor is the juvenile court permitted to arbitrarily censor

information from the public, tossing it down the memory hole.

On the contrary, upon Michael Browns death, the juvenile courts role

transformed from a judicial function to that of a ministerial or administrative capacity.

Because judicial entities when operating in an administrative capacity, are public

governmental bod[ies] under V.A.M.S. Section 610.010, and because under V.A.M.S.

Section 610.011.2 all public records of public governmental bodies shall be open to the

public for public inspection and copying, the records of the deceased Michael Brown are

subject to the Missouri Sunshine Law, Chapter 610, R.S.Mo. Accordingly, Respondent

must be compelled to turn over the records to Relators.

V.A.M.S. Section 211.321 requires those requesting the records to demonstrate a

legitimate interest in the records. However, the records revert to public records, as there

exists no reason under Missouri Law to keep them secret and out of the reach of the

Public. Thus, any interest is legitimate. Even were a showing of a legitimate interest

still somehow required, there presently exist real and compelling interests which display

a worthy and legitimate need for information: such as when the very subject of the

juvenile records was killed by a state actor under suspicious circumstances, when a whole

region erupts in riots leveling a city as a result, and when the President of the United

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States, US Attorney General, national leaders, and indeed the entire nation, have

demanded answers. Indeed, its hard to imagine any more legitimate interest than 1

Relators Public Interest. Because the records are public records, and because Respondent

had no discretion to deny Relators request for such records, there is no possible reason

which could overcome the Common Law Presumption of the openness of records.

Prohibition is appropriate in this instance because This Court has previously held

it to be an appropriate remedy where there exists a clear excess of jurisdiction or abuse of

discretion such that the lower court lacks the power to act as contemplated, or where

there is no adequate remedy by appeal. In the present case, Respondent lacked any

discretion to withhold the Brown records from Relators. Whats more, because there was

no final judgment, appeal was not possible and Prohibition is an appropriate remedy.

Alternatively, Mandamus is also appropriate for similar reasons. When a court

undertakes a non-discretionary act contrary to the directions of the law and was without

jurisdiction to do the non-discretionary act, mandamus is the proper remedy. State ex rel.

M.B. v. Brown, 532 S.W.2d 893, 895 (Mo. Ct. App. 1976). [Mandamus will issue] where

the administrative board (or court) has acted unlawfully or wholly outside its jurisdiction,

and also where it has abused whatever discretion may have been vested in it. State ex

A Google search for news articles using the keyword Ferguson returns 14,500,000 results. 1(Last accessed April 29, 2015). According to Google Trends (www.google.com/trends), Googles search analysis site, Ferguson was the 8th most searched topic in all of 2014. Google uses a scale of 1-100 to judge interest in a topic, with 100 representing maximum interest. Interest in Ferguson easily achieved a rating of 100. Dozens of news institutes and outlets included it among the top 10 stories of 2014.

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rel. Keystone Laundry & Dry Cleaners, Inc. v. McDonnell, 426 S.W.2d 11, 14 (Mo.

1968). [E]xtraordinary writs are issued when necessary to prevent an excess of

jurisdiction, as well as to prevent or stop action where no jurisdiction exists. State ex rel.

Knight Oil Co. v. Vardeman, 409 S.W.2d 672, 675 (Mo. 1966). Mandamus is appropriate

to compel the commission of ministerial acts. State ex rel. R. Newton McDowell, Inc. v.

Smith, 67 S.W.2d 50 (Mo. 1933). And the discretion of the court with regard to the

issuance of the writ is sometimes influenced by the "public importance" of the matter.

State ex rel. Keystone Laundry & Dry Cleaners, Inc. v. McDonnell, 426 S.W.2d at 15.

STATEMENT OF FACTS

On August 9, 2014, Michael Brown, Jr., an unarmed, 64 tall, 300 pound, 18

year-old African-American adult male was shot by Ferguson, Missouri Police Officer

Darren Wilson. Immediately following the shooting, the Saint Louis Region exploded in

protests, riots, looting, widespread property damage, physical violence, and chaos. The

chaos that followed the shooting pushed the narrative to become one of the biggest

news stories of 2014, not only in the United States, but worldwide.

The momentum of the issue was primarily fueled by the assertion of several

supposed witnesses, who claimed not only that Brown was unarmed, but that he had been

attempting to surrender at the time he was shot by Wilson. The issue was further fueled

by local and national political and social leaders who seized upon the shooting as the

quintessential example of racial inequality in the American Justice System. Browns

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death has become a rallying cry and casus belli for those who believe the American

Justice System is irredeemably racist, and a movement, the Mike Brown Movement for

lack of a better name for it, thriving on the outrage at Browns death, has coalesced, with

Ferguson, Missouri as ground zero.

Brown himself has become a martyr. It is that martyr status that serves as the

foundation for the entire movement. Scores of media outlets have assisted the Mike

Brown Movement, leveraging the purported legitimacy of the anger at Browns death,

the righteous moral indignation, through human interest pieces, which have painted a

particular popular portrait of Brown as a fun-loving, poetic, up-and-coming young man,

with a bright future and a tranquil past. The pieces have been extremely unbalanced and

one-sided, portraying Brown, almost without exception, in the most positive light

possible, without examining any troubling elements in the young mans life (See e.g.,

Ex.s J-M). For example: his stepfathers long-standing status as a key lieutenant in the

Bloods gang organization, or Browns history of violence as a juvenile delinquent. The

latter two facts have been given to Relators by a series of whistleblowers.

On August 19, 2014, Relator Charles Johnson sent an open records (Sunshine)

request to the Circuit Court of Saint Louis County (SEE EXHIBIT A), requesting the

juvenile delinquency records of Michael Brown, Jr. About an hour after sending it, he

received a denial of this request from Director of Judicial Administration, Paul Fox, who

redirected Relator Johnson, per Court Operating Rule 2, to seek the records from from the

State Judicial Records Committee. (SEE EXHIBIT B).

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On August 25, 2014, Relators filed a motion for records request per V.A.M.S.

211.321 in the 22nd Circuit, City of St. Louis Family Court, Division 30. That same day,

the motion was heard before the Honorable David Mason, who informed Relators that no

such records existed for Michael Brown Jr., date of birth May 20, 1996 in the City of

St. Louis. (SEE EXHIBIT C).

On August 26, 2014, Relators filed an open records request per V.A.M.S.

211.321 and Rule 122.02 with the 21st Circuit, Saint Louis County Circuit Family/

Juvenile Court seeking access to the juvenile delinquency records of Michael Orlandus

Darrion Brown, Jr. (AKA Michael Brown, Jr. or Michael Brown), date of birth May,

20, 1996. (SEE EXHIBIT D). That same day, a hearing was set for September 3, 2014.

(SEE EXHIBIT E). On September 2, 2014, Relators filed their First Amended Petition.

(SEE EXHIBIT F).

On September 3, 2014, a joint, full hearing on the record was held to hear the

requests of both Relators as well as The Saint Louis Post-Dispatch, which had filed a

similar petition. The court took both petitions under consideration.

On September 9, 2014, Respondent, the Honorable Ellen Siwak, issued an order in

both matters, denying the requests, but also failing to give any specific reason for the

denial. (SEE EXHIBIT G). The Court having called and heard Petitioners Charles C.

Johnson and Got News, LLCs First Amended Petition, and having considered the

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relevant statutes, case law, and arguments of counsel, denies the petition. Id. 2

Shortly after receiving the courts order, Relators sent a records request to the State

Judicial Records Committee. Relators followed up via telephone conversations on

September 19, 2014 with various agents of the Office of State Courts Administration to

confirm that the letter had been received. (SEE EXHIBIT H). On October 31, 2014, the

State Judicial Records Committee denied Relators request. (SEE EXHIBIT I). The

committee denied the release of Michael Brown Jr. juvenile records, if any, by the St.

Louis County Clerks Office, in that the records are confidential pursuant to section 211.

321, RSMo. 3

On November 24, 2014, Saint Louis County Prosecutor Robert McCullough

announced that the Grand Jury, after reviewing the Michael Brown shooting and actions

of Police Officer Darren Wilson, had returned a no true bill, and that no indictment would

issue against Wilson for the death of Brown. Prosecutor McCullough further announced

that he would be making available most or all of the evidence (most or all, depending

on which news outlet was reporting, so it is unclear) reviewed by the grand jury open to

the broader public, in an effort to promote complete and total governmental transparency

regarding the shooting and the subsequent investigation.

After careful inspection of the records that McCullough released, Relators have

This one sentence statement constitutes the courts full reasoning given on the matter. See Ex. 2G.

The denial letter goes on to quote from V.A.M.S. Section 211.321.1. See Ex. I. 3

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not uncovered any of Browns juvenile records and are left to conclude that the Grand

Jury did not consider such evidence.

It should be noted that in the weeks and months leading up to and after the

announcement of the Grand Jury decision, the Saint Louis Region existed in a state of

high concern in some areas, panic. In the wake of the announcement, the City of

Fergusons business district was destroyed, and rioting, looting, shootings, and violence

spread to nearby villages and towns. Protestors and rioters shut down roads, courthouses,

government buildings, interstate highways, and threatened to overrun police

headquarters. Dozens of schools temporarily shuttered. Hundreds, if not thousands of

businesses closed out of fear. The Governor of Missouri declared a state of emergency

and deployed thousands of troops to restore order.

On December 4, 2014, Relators filed their Petition for Writ of Prohibition and/or

Mandamus with the Missouri Court of Appeals for the Eastern District of Missouri. (SEE

EXHIBITS N - O).

On December 18, 2014, the Missouri Court of Appeals denied Relators petition.

(SEE EXHIBIT P).

On March 4, 2015, the US Department of Justice issued its report on its

investigation into the death of Michael Brown, Jr. The 86-page report contained an

exhaustive factual analysis and concluded that the matter lacks prosecutive merit and

should be closed. (SEE EXHIBIT Q, p. 198). The report found that the Brown shooting

was not an objectively unreasonable use of force (see analysis within EXHIBIT Q, p.

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122-23), and that Darren Wilson did not violate Browns Constitutional right to be free

from unreasonable force. Id., at p. 123-24.

Also on March 4, 2015, the US Department of Justice issued its report regarding

its investigation of the Ferguson Police Department. The report found evidence of racial

bias in the Ferguson Police Department (FPD) and the report offered twenty-six

different areas in which the FPD should improve. (SEE EXHIBIT R).

On April 23, 2014, the biological parents of Michael Brown, Jr. (Lesley

McSpadden and Michael Brown, Sr.) filed a seven (7) count wrongful death lawsuit

(wrongful death suit) in St. Louis County Circuit Court (15SL-CC01367) against

Darren Wilson, Former FPD Police Chief Thomas Jackson, and the City of Ferguson.

(SEE EXHIBIT S). The suit alleges, inter alia, violations of the First, Fourth, and

Fourteenth Amendments to the US Constitution. The suit directly places at issue Browns

character and conduct on the date of his death, and alleges that Wilson used excessive

force, lacked probable cause, and unreasonably detained Brown, Jr., and that Wilsons

conduct was influenced by a racial animus, rather than any appropriate influence.

The wrongful death suit alleges that Brown, Jr.s death was directly caused by

Wilsons provocation. (SEE EXHIBIT S, p. 308) (Without the use of such unnecessary

and unwarranted profane language by Defendant Wilson, the initial encounter with

[Brown, Jr.] and [Brown, Jr. companion at the scene, Dorian Johnson] would have been

uneventful But instead, Defendant Wilsons aggressive, disrespectful, and profane

language escalated this encounter into an event that has garnered worldwide attention).

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The suit makes absolutely no mention of the robbery that Brown, Jr. had committed only

minutes before his death (see EXHIBIT Q at p. 118, 122-23, 133-34), that Wilson had

been responding to a sick infant police call but left upon hearing about the robbery on the

police radio, (see EXHIBIT Q at p. 133-34), or that the dispatcher had specifically given

a description of two robbers which matched the dress and physical appearance of Brown,

Jr. and companion Dorian Johnson. See Exhibit Q at p. 118, 133-34. Instead, the suit

alleges that Brown, Jr.s death was a direct result of Wilsons verbal choices, which

indicated that he perceived Brown, Jr., as some thing and less than human. See

EXHIBIT S, at p. 312-14.

Importantly, the wrongful death suit alleges a variety of damages, including loss

Brown, Jr.s comfort (Ex. S, at p. 335, 342, 345), guidance (Ex. S, at p. 335), support (p.

335, 342, 345), care, (p. 335, 343, 345), sustenance (p. 343, 345), society (p. 343, 345),

and services (p. 335). These damages place Browns past activity directly at issue in the

suit, because it is only through an analysis of his past activities that an economic

projection regarding his future earnings capacity, can be performed.

At this point, the Brown Movement has, to a degree, transcended its iconic

progenitor, Brown. However, the legitimacy of the movement is still largely rooted in the

belief that the shooting of Brown was not only unjustified, but that Brown himself was

essentially an innocent youth killed by a vicious, racist police officer. The effects of the

movement are still being felt as they serve as part of the moral foundation of the current

rioting in Baltimore, Maryland, and elsewhere.

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Now that Relators have exhausted every legal alternative in seeking the Brown

juvenile records, Relators have turned to This Court for relief.

ARGUMENT

I. RESPONDENT LACKS AUTHORITY TO KEEP THE JUVENILE RECORDS OF DECEASED ADULTS CONFIDENTIAL; THE PEOPLE OF MISSOURI HAVE A RIGHT TO KNOW THE CONTENTS OF MICHAEL BROWNS JUVENILE RECORDS.

A. Respondent Lacks Any Authority To Deprive Relators Of Michael Browns Juvenile Records And Must Be Compelled To Produce The Records For Relators.

Respondents general authority over juvenile records is found in V.A.M.S. Chapter

211, specifically sections 211.271.3, 211.321.1 and 211.321.2:

After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.

V.A.M.S. 211.271.3 (emphasis added).

Records of juvenile court proceedings as well as all information obtained and social records prepared in the discharge of official duty for the court shall not be open to inspection or their contents disclosed, except by order of the court to persons having a legitimate interest therein, unless a petition or motion to modify is sustained which charges the

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child with an offense which, if committed by an adult, would be a class A felony under the criminal code of Missouri, or capital murder, first degree murder, or second degree murder or except as provided in subsection 2 of this section.

V.A.M.S. 211.321.1 (emphasis added). In all proceedings under subdivision (2) of subsection 1 of section 211.031, the records of the juvenile court as well as all information obtained and social records prepared in the discharge of official duty for the court shall be kept confidential and shall be open to inspection only by order of the judge of the juvenile court or as otherwise provided by statute. In all proceedings under subdivision (3) of subsection 1 of section 211.031 the records of the juvenile court as well as all information obtained and social records prepared in the discharge of official duty for the court shall be kept confidential and may be open to inspection without court order only as follows:

(1) The juvenile officer is authorized at any time: (a) To provide information to or discuss matters concerning the child, the violation of law or the case with the victim, witnesses, officials at the child's school, law enforcement officials, prosecuting attorneys, any person or agency having or proposed to have legal or actual care, custody or control of the child, or any person or agency providing or proposed to provide treatment of the child. Information received pursuant to this paragraph shall not be released to the general public, but shall be released only to the persons or agencies listed in this paragraph; (b) To make public information concerning the offense, the substance of the petition, the status of proceedings in the juvenile court and any other information which does not specifically identify the child or the child's family; (2) After a child has been adjudicated delinquent pursuant to subdivision (3) of subsection 1 of section 211.031, for an offense which would be a felony if committed by an adult, the records of the dispositional hearing and proceedings related thereto shall be open to the public to the same extent that records of criminal proceedings are open to the public. However, the social summaries, investigations or updates in the nature of presentence investigations, and status reports

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submitted to the court by any treating agency or individual after the dispositional order is entered shall be kept confidential and shall be opened to inspection only by order of the judge of the juvenile court; (3) As otherwise provided by statute; (4) In all other instances, only by order of the judge of the juvenile court. V.A.M.S. 211.321.2.

Additional guidance is supplied by Rule 122.02c-d (emphasis added):

c. Confidential files, as defined in section 211.319.3, RSMo, and files and records specifically ordered closed by the court shall be accessible only to persons the court has determined to have a legitimate interest in such files and records. d. In determining whether a person has a legitimate interest, the court shall consider the nature of the proceedings, the welfare and safety of the public, and the interest of the juvenile and any other juvenile identified in the file or records.

In addition to the limits placed on the court by the statutes and Rules cited, supra,

and the accompanying body of caselaw described, infra, such courts authority is also

limited by V.A.M.S. 211.011, entitled Purpose of law how construed, and which

opens V.A.M.S. Chapter 211. Thus, the language of Sections 211.011, 211.271.3,

211.321.1, and Rule 122.02c-d, as well as the case law interpreting these laws and rules,

form the boundaries of the Respondents general authority over juvenile records.

Importantly, the [statutes of the juvenile code have] been described as a complete

code, with each section to be construed in relation to the other. In Interest of A.D.R.,

603 S.W.2d 575, 580 (Mo. banc 1980) (emphasis added) (citing to State v. Williams, 473

S.W.2d 382, 383 (Mo. 1971), accord Smith v. Harolds Supermarket, 685 S.W.2d 859, 863

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(Mo. Ct. App. W.D. 1984). Thus, sections of the code cannot be construed piecemeal and

independent from one another.

The crux of the issue before the Court is whether or not Respondent had

jurisdiction to deny Relators request for the records. Missouri Courts are a direct creation

of the People of Missouri. Mo. Const. Art. V, Sec. 1. The Missouri Supreme Court may

establish rules relating to practice and procedure, but such rules cannot change

substantive rights. Mo. Const. Art. V, Sec. 5. Respondents general jurisdiction over

juvenile records has limits, and Respondent cannot simply manufacture authority out of

thin air. Thus, the discretionary authority of Respondents denial of Relators request for

Browns juvenile records must have its source in enumerated law. As Relators shall

demonstrate, however, Respondent exceeded her authority.

1. The Purpose of V.A.M.S. Chapter 211 Is To Protect The Interests And Welfare Of Living Juveniles.

The purpose of V.A.M.S. Chapter 211 is set out in V.A.M.S. 211.011:

The purpose of this chapter is to facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court. This chapter shall be liberally construed, therefore, to the end that each child coming within the jurisdiction of the juvenile court shall receive such care, guidance and control as will conduce to the childs welfare and the best interests of the state, and that when such child is removed from the control of his parents the court shall secure for him care as nearly as possible equivalent to that which should have been given him by them. The child welfare policy of this state is what is in the best interests of the child.

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Id. (emphasis added).

Chapter 211 is designed to instruct the juvenile court on how to deal with

the children falling under its jurisdiction in a plethora of different contexts. Critically it

only addresses and contemplates living children.

Family/juvenile courts cover a lot of ground. They can determine custody,

seize children from abusive parents and guardians and, of course, they work to discipline/

rehabilitate delinquent children, among other related charges. Unquestionably, part of the

rehabilitative effort of the state is to spare the emerging adult the embarrassment, shame

and missed opportunities that general public knowledge of the negative conduct record,

broken home, or abuse, which was perpetrated, endured or suffered by the adult when

they were a child. Such stigma can radically stunt ones future.

Clearly, this is what the Missouri Legislature had in mind when it wrote in

V.A.M.S. 211.271.1, that [n]o adjudication by the juvenile court upon the status of a

child shall be a conviction, nor shall the adjudication operate to impose any of the civil

disabilities ordinarily resulting from conviction nor shall the child be found guilty or be

deemed a criminal by reason of the adjudication. Or, in V.A.M.S. 211.271.4, that

[t]he disposition made of a child and the evidence given in the court does not operate to

disqualify the child in any future civil or military service application or appointment.

Plainly, the state has an interest in giving kids an opportunity for a clean slate - a second

chance, rather than damning them at the very start of their adult life.

While the welfare of a juvenile is a highly placed priority for the state, it is

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not the states sole objective or concern. In addition to the responsibilities the state has to

protect juveniles, the state also has an obligation to protect the public and promote peace,

prosperity, and democracy, among other duties. This is precisely what the Missouri

Legislature was referring to when it juxtaposed its promise to juveniles before the

juvenile/family court, and also its responsibilities to the general public: each child

coming within the jurisdiction of the juvenile court shall receive such care, guidance and

control as will conduce to the childs welfare and the best interests of the state

V.A.M.S. 211.011. Sometimes the interests of the state and the protection of the public

are best served by removing a proven criminal threat from the general public and placing

them in a detention center. In other various instances, rehabilitative efforts accomplish the

states interest. As described, infra, the state also has an interest in carefully balancing the

rights of others, vis--vis the limited records privacy privilege of juveniles.

However, the state has no interest in or ability to rehabilitate the dead. The

state cannot protect the dead, nor preserve their opportunity for a second chance. Whats

more, setting aside the interpretation of wills or survival actions, the dead have no legally

significant interests, whatsoever, to preserve, protect, or advance. See Holmes v.

Arbeitman, 857 S.W.2d 442, 444 (Mo. App. E.D. 1993) (an attorney's representation of

his or her client terminates upon the client's death).

The purpose of V.A.M.S. Chapter 211 cannot be achieved by denying

Relators access to Michael Browns juvenile records, because the juvenile subject no

longer lives. Maintaining the privacy of Michael Browns records may well serve a

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purpose, but it is not a purpose recognized under Missouri Law.

2. The Confidentiality Afforded To Living Juveniles in V.A.M.S. Chapter 211 Is A Limited Privilege, And Not An Absolute Right, And May Be Abrogated And Waived.

V.A.M.S. 211.271.3 explains:

After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.

Id. (emphasis added).

The records privacy protections offered to living juveniles in Chapter 211 is

a limited privilege, with a very narrow purpose. Thus, it is misreading the statute to

suggest that the privacy protections are absolute or without exception.

First, the limited records privacy rights afforded to living juveniles are

non-transferable. It is evident to this court that the prohibition against the use of

juvenile court reports and records is for the exclusive protection of the juvenile, and

does not extend to any other person or proceeding which is neither occasioned by or

brought against the juvenile. Smith v. Harolds Supermarket, Inc., 685 S.W.2d 859, 863

(Mo. Ct. App. W.D. 1985) (emphasis added). Thus, it is clear the privilege is that of the

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juvenile and not of the [juveniles] parents. State ex rel. Rowland v. OToole, 884

S.W.2d 100, 102 (Mo. Ct. App. E.D. 1994).

In Smith, an 18 year-old white male (Halstead) was killed after being

apprehended and beaten by a supermarket manager, who had caught Halstead stealing a

package of cigarettes. Id. at 861. Halsteads mother filed a wrongful death suit against the

supermarket and manager. Id. During the trial, and after extraordinary writs, the

defendants successfully sought the introduction of Halsteads juvenile record, against the

strenuous wishes of Halsteads mother, and the mother ultimately appealed. Id. The Court

of Appeals held in favor of the defendants, and found that the purpose of V.A.M.S.

Chapter 211 was to protect and safeguard the best interests of the juvenile. Id., at 863.

Further, the court found that the prohibition against the use of juvenile court reports and

records is for the exclusive protection of the juvenile and does not extend to any other

person or proceeding which is neither occasioned by nor brought against the juvenile. Id.

The court explained that its rationale in refusing to censor information was all the

stronger since that case involved the juvenile records of a deceased juvenile. Id. Thus,

the privilege does not survive a deceased juvenile.

Second, the limited privacy offered by V.A.M.S. Chapter 211 to living

juveniles is not an all-encompassing or blanket prohibition against the use of all juvenile

records and related evidentiary matters in all cases not otherwise involving the

juvenile... Smith v. Harolds Supermarket, Inc., 685 S.W.2d at 863, accord State v.

Mahurin, 799 S.W.2d 840, 843 (Mo. banc 1990) (rejecting an absolute prohibition

! 21

on the use of juvenile records; 211.271.3 only applies to use of childs statement

against the child). V.A.M.S. 211.271.3.

One of the principal purposes of keeping the records private is to protect

the child in the event civil or criminal proceedings are later brought against the child. Id.

A juveniles right of confidentiality as to juvenile records is a qualified and not an

absolute privilege. State ex rel. Rowland v. OToole, 884 S.W.2d at 103. [Regarding

V.A.M.S. 211.271.3] However, statements made by others in a juvenile court

proceeding and court records and reports may be used against others. Thus, those juvenile

court records and reports which do not relate to the juveniles own statements against

himself are not subject to the privilege. Id., at 102-03. (internal citations omitted).

Moreover, living juveniles qualified privilege of confidentiality can be

abrogated when certain other rights or needs are affected. For example, crime victims of

juveniles are entitled to general information regarding the informal adjustment or formal

adjudication of the disposition of a childs case V.A.M.S. 211.321.6. Juvenile

Officers are also permitted - at any time - to provide information to or discuss matters

concerning the child, violation of law, or the case with the victim, witnesses, officials at

the childs school, law enforcement officials, prosecuting attorneys [and those providing

! 22

care and/or treatment of the child]. V.A.M.S. 211.321.2. 4

As another example, a juveniles admissions and statements have also been used to

preserve another individuals Sixth Amendment rights. [W]e conclude that the right of

confrontation is paramount to the states policy of protecting a juvenile offender.

Whatever temporary embarrassment might result to [the juvenile] or his family by

disclosure of his juvenile record if the prosecution insisted on using him to make its

case is outweighed by petitioners right to probe into the influence of possible bias in

the testimony of a crucial identification witness. Davis v. Alaska, 415 U.S. 308, 319

(1974). As in Alford, we conclude that the States desire that [the juvenile] fulfill his

public duty to testify free from embarrassment and with his reputation unblemished must

fall before the right of the petitioner to seek out the truth in the process of defending

himself. Id., at 320. Davis has been adopted in Missouri in State v. Russell, 625 S.W.2d

138 (Mo. banc 1981).

Additionally, a living juvenile may waive his limited privilege of

confidentiality by placing his juvenile arrest and juvenile court proceedings in issue by

voluntarily filing suit OToole, at 103. The rationale is that permitting a plaintiff

[juvenile] to use the privilege to conceal trial facts relating to the very issue the plaintiff

Hundreds, if not thousands of people in the St. Louis Region have had property destroyed, been 4attacked, or had their lives disrupted by any one of dozens of major riots in the aftermath of the Brown shooting. As parallel riots took place in California, New York, Chicago, and elsewhere, there have likewise been throngs of victims in those areas as well. Are all of these victims not entitled to the Brown records by virtue of their victimhood? What further bona fides must the public demonstrate in order to know the truth about Michael Brown, Jr.?

! 23

[juvenile] had originated for submission to judicial inquiry would permit the plaintiff to

use the privilege as a shield and a dagger at one and the same time (which we do not

believe the legislature intended). Id. (internal quotes and citations omitted). Compare

OToole with Smith v. Harolds Supermarket. In the latter case, where the deceased

juveniles mother had brought a wrongful death claim against the supermarket, the

mother placed the issue of the deceased juveniles future earning potential at issue, by

seeking recovery, in part, for his lost services (financial earning potential). Smith, at

861-62. She had also called an economist witness at trial to testify to establish lost

earnings. Id. The defense had sought the release of the juvenile records to challenge the

issue of the value of the deceased juveniles future services. Id., at 862. The Court of

Appeals held that the mothers challenge of the defendants use of the juvenile records

failed not only because (1) the statutory confidentiality privilege did not belong to her,

but also because she had (2) pleaded and (3) put on evidence placing the records directly

at issue. Smith, at 865. 5

In sum, the privacy protections afforded to juveniles in V.A.M.S. Chapter

211 are exclusive, non-transferable privileges, which exist solely to protect living

juveniles from having their records used against them in civil or criminal prosecutions,

to promote a candid and effective relationship between the juvenile and juvenile officer,

Similarly, even if Michael Browns limited privacy privilege survived him - which it does not - 5the wrongful death suit as brought by Browns biological parents would waive the privilege, as Browns parents have squarely placed the issue of his pecuniary value at issue in the suit. (e.g., allegations of damages such as loss of comfort, guidance, support, care, sustenance, society, and services). See discussion, supra, at p. 11-13.

! 24

and to prevent the records from needlessly stunting the juveniles prospects of becoming

a productive member of society. The privilege is not absolute, and a variety of state and

private interests can remove the privilege. The privilege can also be voluntarily waived.

Michael Brown, Jr. will never be prosecuted or sued in any court. There is

nothing any earthly being can do to him that would ever cause him harm. Accordingly,

there is no use of his juvenile records which could possibly harm him in any way, let

alone be used against him in a court of law. As a result there is no legal basis in denying

Relators access to his records.

3. The States Public Policy Interest In Protecting Browns Records Has Been Mooted By Browns Death.

Upon lengthy review of Missouri case law, Relators have discovered

several decisions which collectively stand for the proposition that the juvenile court can

be stripped of its discretion as to the confidentiality of juvenile records and its jurisdiction

over juveniles in general. The purpose of analyzing these cases is to establish the

boundaries of the juvenile courts discretion and jurisdiction, boundaries which shift

based on the metamorphosis of the juvenile from childhood to adulthood, or beyond.

a. Critical changes in circumstances can strip juvenile courts of discretionary authority, transforming its role from a judicial to a ministerial/ administrative capacity.

In a number of situations, critical changes in the circumstances

surrounding the individual juvenile can work to strip the juvenile court of its

discretionary authority to make substantive decisions regarding the juvenile. Such

! 25

changes can transform the role of the juvenile court judge from a judicial to a ministerial/

administrative capacity. The destruction of juvenile records, per V.A.M.S. 211.321.5

provides an excellent example.

The authority vested in the juvenile court in V.A.M.S. 211.321,

which places that court as the gatekeeper to juvenile records, is limited by V.A.M.S.

211.011, which as has been shown, explains the essential purpose of Chapter 211: the

protection of living children. V.A.M.S. 211.321.5 governs the Respondents authority to

destroy or seal juvenile records. Respondent or any juvenile court may only order the

destruction or sealing of such records after the juvenile has reached the age of seventeen

(17), and upon a finding that to destroy the records would be in the best interest of the

child. Here again, given Michael Browns death, Brown has no cognizable legal

interest, let alone a best interest. Thus, the Respondent cannot order the destruction or

sealing of the records.

This is pertinent because it demonstrates that changing

circumstances can completely change the status of the documents and the role of the

juvenile court. Whereas, while Brown lived, the disposition of the records was left to the

discretion of the Respondent, Browns death has transformed Respondents role into a

ministerial one, akin to a custodian of records. And there are other examples of this

which are relevant to a discussion of impracticability and mootness.

For example, generally, the juvenile court only has jurisdiction over

juveniles who violate state or municipal law prior to the age of seventeen. V.A.M.S.

! 26

211.031; J.O.N. v. Juvenile Officer, 777 S.W.2d 633 (Mo Ct. App. W.D. 1989). Such

jurisdiction can be extended, at maximum, to the age of twenty-one. V.A.M.S. 211.041.

However, in the latter example, once a juvenile turns twenty-one, the juvenile court only

retains nominal jurisdiction, for the sole and exclusive purpose of certifying the juvenile

as an adult. [A] juvenile court may retain jurisdiction until the juvenile is twenty-one

[A]ttaining the age of twenty-one does not destroy jurisdiction altogether. Instead,

because the individual is over the age of 21 and there can be no reasonable prospect

of rehabilitation within the juvenile justice system, [ 211.041] mandates that the

juvenile court may no longer retain jurisdiction and must certify the juvenile as an adult

to be tried by the court of general jurisdiction. State v. Larson, 79 S.W.3d 891, 895 (Mo.

2002) (emphasis added). Said another way, the statutes purpose of rehabilitating the

child becomes impracticable and moot when the child outgrows the statutory

jurisdiction of the juvenile court. And yet, the court still retains nominal jurisdiction, if

only to certify the child as an adult. Asserting any further authority, the juvenile court

would be acting ultra vires. Similarly in the present case, the purpose of the the limited

juvenile document privacy privilege (as more fully described, supra) became

impracticable and moot when Michael Brown, Jr. departed the earth. Again, changing

conditions can automatically work to strip Respondent of discretion, and transform her

role into a non-discretionary, ministerial/ administrative capacity.

! 27

b. Upon Browns death, Respondents role transformed from a judicial to a ministerial capacity, and the Missouri Sunshine Law applies.

As discussed, supra, as a subject juveniles critical circumstances

permanently change, the purpose of the juvenile is rendered impracticable and moot,

and a juvenile court can be stripped of its discretionary authority. It is this loss of

discretion that transforms the role and function of the juvenile court from a judicial to a

ministerial/ administrative capacity. In the context of juvenile records the juvenile courts

statutory discretion is the only thing that stands between the Public and a subject

juveniles records. When that discretion is eliminated, the records must, of necessity,

revert back to the public domain, where they may be requested by any member of the

Public under Chapter 610 R.S.Mo, the Missouri Sunshine Law.

Per V.A.M.S. 211.011, Smith, OToole, and State v. Mahurin, et al,

cited supra, the state only has an interest in any juveniles records so long as the subject

juvenile maintains an interest in those records, or so long as the juveniles interest in

those records does not materially conflict with other critical public policy interests (e.g.,

individuals Sixth Amendment rights in Davis v. Alaska, discussed supra). When the

subject juvenile loses or waives its interest in its own juvenile records, the source of the

states interest has been extinguished. The sole raison d'tre for the discretion to deny the

public access to the records ceases to exist. When Michael Brown died, his interest in the

records was eliminated and, so too was the states. The states interest in his records

became moot, as the purpose of the Chapter 211, that is, actualizing the juveniles best

! 28

interest and welfare, became impossible to achieve. It is self-evident that as applied to

the deceased Michael Brown, Jr., the terms best interest and welfare are rendered

meaningless.

Because the juvenile code does not apply to Michael Browns

juvenile records for reasons discussed, supra, Respondents function, relative to the

records, is ministerial/administrative - a custodian of records. As a result, Respondent is a

public governmental body per V.A.M.S. 610.010. (judicial entities when operating

in an administrative capacity). While during the course of deciding live controversies

a court acts in a judicial capacity, once the controversy has been decided, the records of

those decisions are simply records that must be maintained. The maintenance of those

records is an administrative duty.

With no legally cognizable interest left to defend or advance,

Respondent simply lost discretion to deny Relators request for the Brown juvenile

records. Lacking discretion to deny the records, Respondents role transformed from a

judicial, to a ministerial/administrative capacity. Thus because no state agent has any

legal authority to deny Relators request for the records, or that of anyone else, the

juvenile records, by default, reverted to the public domain. Respondents proper

function was simply that of a custodian of records: to preserve the records for the benefit

of the People of the State of Missouri. Respondent has no choice and no statutory

authority to do anything other than to turn over the records upon the request of any

member of the Public per Missouri Sunshine Law. As a result, Respondents denial of

! 29

Relators request for the records is unlawful. State ex rel. Keystone Laundry & Dry

Cleaners, Inc. v. McDonnell, 426 S.W.2d 11, 14 (Mo. 1968) ([Mandamus will issue]

where the administrative board (or court) has acted unlawfully or wholly outside its

jurisdiction, and also where it has abused whatever discretion may have been vested in

it.)

4. Respondent Has Unlawfully Failed To Recognize Relators Public Right Of Access To Browns Juvenile Record.

Aside from the Missouri Sunshine Law, Missouri recognizes a common

law right of public access to court and other public records. Pulitzer Publishing Co. v.

Transit Casualty Co., 43 S.W.3d 293, 300 (Mo. banc 2001). Given the presumption in

favor of open records, an abuse of discretion is present when trial court orders

inexplicably seal court records, do not articulate specific reasons for closure, or do not

otherwise demonstrate a recognition of the presumptive right of access. Id. (emphasis

added). Citizens of Missouri have the right to inspect and copy any public record even if

there is no apparent legal interest to be subserved Pulitzer Publishing Co. v. Transit

Casualty Co., 43 S.W.3d at 300 (quoting to State ex rel. Gray v. Brigham, 622 S.W.2d

734, 735 (Mo. App. 1981). Although the rule imposes a presumption that records are

open to the pubic, there is an express exception for records that are confidential

pursuant to court order. Nevertheless, the presumption of openness is intended to inform

the decision of whether to seal the records in the first place, or to unseal the records if

the justification for sealing the records abates. The policy supporting the presumption

! 30

as reflected in the rule merits repeating: Justice is best served when it is done within full

view of those to whom all courts are responsible the public. On the basis of that policy,

and considering the substantial authority from other courts this Court affirms, subject

to the exceptions of Court Operating Rule 2, that there is a presumption in favor of the

publics right of access to court records and that the presumption cannot be overcome

absent a compelling justification that the records should be closed. Id., at 301.

(collecting cases) (emphasis added). There are important exceptions that limit the

presumption of open records when sufficiently important interests outweigh the publics

right of access Where there are higher interests favoring nondisclosure, courts and the

legislature have routinely seen fit to close some public records In order to close court

or other public records, however, a court in its order must identify specific and

tangible threats to important values in order to override the importance of the

public right of access Vague or uncertain threats claimed by one party normally

would not justify closure. Id., at 302. (emphasis added).

In her denial of Relators request for Browns juvenile records, Respondent

failed to articulate any specific reason for refusing to provide the records. See Exhibit G

(The Court having called and heard Petitioners Charles C. Johnson and Got News,

LLCs First Amended Petition, and having considered the relevant statutes, case law, and

arguments of counsel, denies the petition.). Respondent summarily denied Relators

request without identifying any specific and tangible threats important enough to override

the importance of the public right of access. As discussed in Pulitzer, supra, the

! 31

presumption of public access requires the court to provide records if the justification for

the sealing the records abates. Here, any theoretical justification for keeping Browns

juvenile records confidential has abated Brown is deceased. As a result, Respondent

acted unlawfully and must be compelled to produce Browns juvenile records to Relators.

B. Even if the State Must Balance The Competing Interests Of The Publics Right Of Access And The Juvenile Courts Need To Safeguard The Welfare Of Juveniles, Respondent Still Acted Without Authority And Unlawfully And Must Be Compelled To Turn Over Browns Records.

1. In weighing the competing interests, the scale tips in favor of access to the records.

Even if this Court finds that the juvenile court must balance the interests of

the publics right of access with the juvenile courts need to safeguard the welfare of

juveniles, the scale clearly tips in favor of the Publics right of access. Therefore,

Respondent must be compelled to turn over Browns records. Given the rarity of the

central focus of this case, it is again useful to observe how other courts have handled

similar situations.

In re Richmond Newspapers, Inc., is a Virginia case in which various

newspapers sought access to the records of a juvenile delinquent who had been found

murdered. 14 Va. Cir. 227 (Va. Cir. Ct. 1988). The trial court denied the newspapers

request for access to the records, reasoning that (1) the disclosure of the records would

cause damage to the family of the deceased juvenile; (2) that the juvenile had a right to

privacy even in death; and (3) that the records must be held in confidence in order to

! 32

protect the courts ability to obtain confidential information.

In finding for the newspapers, the Court of Appeals noted that, in general, a

juvenile courts determination of whether or not to turn over juvenile records involves

striking a balance between the publics right of access and the potential harm which such

access might cause. Id., at 231. In an unbroken line of cases starting in 1980, the

Supreme Courts of the United States and Virginia have recognized that one of the

demands of a democratic society is that the pubic should know what goes on in the courts

by being told by the press what happens there Id. (collecting cases and quoting

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 n.9 (1980)). On the other

hand, it is also clear that society has a legitimate interest in shielding juveniles from the

same level of scrutiny which sometimes attaches to adults. With reference to juvenile

offenders, that shield is legitimately designed to facilitate rehabilitation and, assuming

such rehabilitation has occurred, to allow such offenders to take their place in society as

law-abiding adult citizens unfettered by the stigma of childhood indiscretions [T]his

interest of society, to protect juveniles from the types of consequences which would result

from their acts if such acts were committed by adults, is just as compelling as societys

interest in gaining access to court records. Only by balancing these seemingly competing

interests, then, can [the court properly interpret the privacy interest assigned by Virginia

juvenile laws]. Id. at 233.

Having weighed these two competing interests, the court concluded that a

blanket prohibition against disclosure of juvenile records was inappropriate, and that the

! 33

trial court failed to strike the required balancing of interests. Id., at 233-34, compare with

Smith v. Harolds Supermarket, Inc. 685 S.W.2d at 863 (privacy offered by V.A.M.S.

Chapter 211 to living juveniles is not an all-encompassing or blanket prohibition against

the use of all juvenile records and related evidentiary matters in all cases not otherwise

involving the juvenile).

Specifically, the appellate court found that (1) any privacy interest of a

juvenile does not similarly attach or transfer to families; (2) deceased juveniles have no

privacy rights; (3) deceased juveniles cannot be rehabilitated ([m]oreover, as morbid as

it may sound, the goals of rehabilitating and shielding [the subject juvenile], who is now

deceased, can no longer be met. Thus, whatever interests society in general and [the

subject juvenile] in particular may have had in resisting disclosure so as to facilitate

his rehabilitation and to shield him from the consequences of his juvenile acts no

longer exist, and they may not be properly relied upon now to deny access); and that

(4) while information that is obtained on the promise that it will not be disclosed should

not be disclosed, the trial court could not summarily refuse to disclose every part of the

deceased juveniles record. Id., at 234-35. 6

Similar to In re Richmond, here, even if interests are to be weighed, the

Compare with State ex rel. Rowland v. OToole, 884 S.W.2d 100 at 102, (Thus, it is clear the 6privilege is that of the juvenile and not of the [juveniles] parents.), also see State v. Larson 79 S.W.3d 891 at 895, (because the individual is over the age of 21 and there can be no reasonable prospect of rehabilitation within the juvenile justice system, [ 211.041] mandates that the juvenile court may no longer retain jurisdiction and must certify the juvenile as an adult to be tried by the court of general jurisdiction).

! 34

scale clearly tips in favor of public access for almost exactly the same reasons as in In re

Richmond. Here, as there, whatever privacy interest held by Brown died with him and is

non-transferable. Further, the objectives of Chapter 211, namely Browns rehabilitation

and well-being, cannot be achieved, given his death. In fact, the analysis articulated by

the Virginia Court is strikingly similar to that used by Missouri courts in Smith and

O'Toole. In the Virginia case, as in the Missouri cases, the Courts concluded that the

privilege of sealed juvenile records belongs exclusively to the subject of those records

and that, morbid as it may sound, the goal of shielding the juvenile is subverted and

rendered inert by the death of the juvenile.

Relators do not object to any in camera review of the records to redact the

records to safeguard any other living juvenile, and Relators support the preservation of

confidentiality for any living confidential informants used in deriving or generating any

of the Brown juvenile records. However, Respondents categorical denial of Browns

juvenile records is, at a minimum, too sweeping of a result, in that it seals all of the

information not just information gathered upon a promise of nondisclosure. For these

reasons, Respondents denial was unlawful and beyond her authority, and Respondent

must be compelled to produce the records for Relators.

2. The Publics interests of Democracy and government accountability tip the scales in favor of granting Relators access to Browns records; the Public relies and depends

upon the press to accurately inform them about matters involving the judicial branch and government accountability.

! 35

In a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations . . . . With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice . . . .The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecution . . . are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government. 420 U.S. at 491-92 (citation omitted).

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92 (1975).

Tens of thousands of people, in Missouri and across the US, have marched,

protested, shut-down interstates, schools and businesses, rioted, looted, pillaged, burned,

and/or engaged in violence. A city has been burned to the ground. A region has been held

hostage. These actions have been taken based upon a widespread belief that Michael

Brown was murdered in cold blood by Police Officer Darren Wilson, and that the Brown

murder is the quintessential, microcosmic example of a pervasive crisis in Missouri and

nationwide.

A movement has formed, advocating change, and constantly pointing to the

Brown murder as the example of the problem the change is designed to address. The

Brown murder has become an emotionally charged super-Meme. In dozens of cities,

protesters have staged die-ins, laying on streets, pretending to be dead in reference to

Michael Browns lifeless body laying on the warm pavement. Hands-up, Dont Shoot!

! 36

has become a nationally recognized slogan and rally cry employed by protesters and

professional athletes across the nation. Nationally and locally, social and political leaders

have seized upon the super-Meme in order to leverage it for various socio-political

agendas and propaganda.

The President of the United States has met with a large number of groups

who comprise the Michael Brown Movement, and he has also encouraged them to keep

protesting and fighting for change, and he has specifically encouraged school children to

build classroom memorials to honor the memory of Michael Brown, as well as other

victims of police violence. On the basis of the Brown SuperMeme, The U.S. Attorney

General has repeatedly accused large swaths of Americans, generally, and scores of

police officers and the justice system, specifically, of being racists. On the basis of the

Brown SuperMeme, hundreds of mainstream media outlets from The Atlantic, The New

York Times, CNN, and others, have labeled Ferguson and the Greater Saint Louis Region

a hotbed of racism. Ferguson itself has been repeatedly dubbed a mini Apartheid state.

Perhaps the single most important and frightening allegation that the

Michael Brown Movement continues to make is that the justice system within Saint

Louis County conspired to deliberately scuttle any potential indictment of Officer Darren

Wilson

The duty of the press, as outlined in the Cox Broadcasting quote, supra, is

to provide accurate information to the Public, so that it may make informed, reasoned

decisions regarding matters of serious public importance. The Brown incident is such a

! 37

matter of serious public importance literally millions of people have been impacted, and

cities have burned, lives have been changed. A shadow has been cast over the system of

justice. It is imperative that the Public be provided with information so that it may

properly hold its justice system and government, accountable.

In general, the public policy behind open records and the public right of

access is well established in Missouri. Pulitzer, at 300. In all instances where, by law

or regulation, a document is required to be filed in a public office, it is a public record

and the pubic has a right to inspect it. Id. (quoting State ex rel. Kavanaugh v.

Henderson, 169 S.W.2d 389, 392 (Mo. 1943)). The publics right to inspect court and

other public records stems from the publics presumed interest in the integrity and

impartiality of its government [O]pen records do not simply accommodate the publics

amusement, curiosity, or convenience. Instead, it is simply beyond dispute that public

records are freely accessible to ensure confidence in the impartiality and fairness of the

judicial system, and generally to discourage bias and corruption in public service.

Without publicity, all other checks are insufficient. Id., at 300-01 (quoting 1 J.

Bentham, Rationale of Judicial Evidence 524 (1827)).

Normally, in the context of living juveniles, the public enjoys no intrinsic

compelling interest in the records of a subject juvenile. However, in the present case, not

only is the subject of the juvenile records deceased, but within significant portions of the

population, a suspicion has arisen that Brown was gunned down in cold blood, and that

the justice system has essentially obstructed the investigation in order to protect the

! 38

killer police officer. Thus, not only has any justification for sealing the records

abate[ed], but even if it hadnt, there are higher interests that favor disclosure. If there

exist records which would could help confirm or disconfirm such shocking allegations,

the Public must see them.

Relators have received multiple communications from state and federal

confidential law enforcement sources which have emphatically and repeatedly claimed to

Relators that Michael Brown had an extensive and serious juvenile record, and that he

was implicated and involved in murdering another person. Relators have invested an

enormous amount of time and resources into trying to determine the validity of these

claims, and it thus goes without saying that Relators have found the confidential sources

to be entirely credible. If Browns juvenile record contains evidence of a serious criminal

history, then such evidence radically alters the current narratives that are being laid out in

newspapers, in online blogs, and on television. Michael Brown has been portrayed by the

media as an average teen-aged young man, with a bright future and a relatively non-

violent past. See Exhibit J, (where Browns familys assertion that he had no juvenile

record goes completely unchallenged by the New York Times: He did not have a

criminal record as an adult, and his family said he never got in trouble with the law as a

juvenile, either.), as well as Exhibits K, L, and M. This has only served to enhance the

outrage at his death, as it makes the possibility that he would attack a police officer in a

police SUV seem far more remote, and nefarious, conspiratorial action by police or

public officers seem more likely. Whatever the case, Relators and the Public have a right

! 39

to this information.

II. A Writ of Prohibition and/or Mandamus is Appropriate in this Case

The Courts power to issue a writ of Prohibition derives from Article V, section 4.1

of the Missouri Constitution. According to State ex rel. Noranda Aluminum, Inc v. Rains,

Situations where this Court has issued writs of prohibition generally fall within one of

three categories; 1) where there is a usurpation of judicial power because the trial court

lacks either personal or subject matter jurisdiction; 2) where there exists a clear excess of

jurisdiction or abuse of discretion such that the lower court lacks the power to act as

contemplated; or 3) where there is no adequate remedy by appeal. State ex rel. Noranda

Aluminum, Inc v. Rains, 706 S.W.2d 861, 862 (Mo. banc 1986).

The instant case falls into both the second and third categories. Respondent

exceeded her jurisdiction and abused her discretion in issuing her September 9, 2014

Order denying Relators access to Michael Browns juvenile records because the death of

Michael Brown rendered the purpose of Chapter 211 moot and brought him outside of the

jurisdiction of the juvenile court, since its purpose is to serve to protect the interests of

living juveniles, as argued supra. Further, in the instant case, there is no adequate remedy

by appeal because Respondent issued an order denying Relators access to Browns

juvenile records. The trial court never had personal jurisdiction, nor did the juvenile court

have standing to withhold the juvenile records of Michael Brown. His status as a

deceased adult, according to Smith v. Harolds Super Market and OToole, as well as

V.A.M.S. 211.321 and 211.041, cited supra, brought him outside of the juvenile

! 40

courts jurisdiction, since the Juvenile court no longer had the duty protect Brown from

future lawsuits. Prohibition is therefore appropriate.

In the alternative, Relators seek Mandamus. As a general rule, mandamus will not

lie where there is another plain, speedy and adequate remedy at law, but it is well settled

that this other remedy must be equally as convenient, beneficial and effective as

mandamus. State ex rel. M.B. v. Brown, 532 S.W.2d 893, 895 (Mo. Ct. App. 1976). When

a court undertakes a non-discretionary act contrary to the directions of the law and was

without jurisdiction to do the non-discretionary act, mandamus is the proper remedy. Id.

[Mandamus will issue] where the administrative board (or court) has acted unlawfully or

wholly outside its jurisdiction, and also where it has abused whatever discretion may

have been vested in it. State ex rel. Keystone Laundry & Dry Cleaners, Inc. v.

McDonnell, 426 S.W.2d 11, 14 (Mo. 1968). [E]xtraordinary writs are issued when

necessary to prevent an excess of jurisdiction, as well as to prevent or stop action where

no jurisdiction exists. State ex rel. Knight Oil Co. v. Vardeman, 409 S.W.2d 672, 675 (Mo.

1966). Mandamus is appropriate to compel the commission of ministerial acts. State ex

rel. R. Newton McDowell, Inc. v. Smith, 67 S.W.2d 50 (Mo. 1933). And the discretion of

the court with regard to the issuance of the writ is sometimes influenced by the "public

importance" of the matter. State ex rel. Keystone Laundry & Dry Cleaners, Inc. v.

McDonnell, 426 S.W.2d at 15.

In the present case, Respondent lacked any authority to deny Relators request for

Michael Browns juvenile records. Upon the death of Brown, the nature of Respondents

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role changed to a ministerial capacity, akin to a custodian of records. Mandamus is

appropriate because Respondent exceeded her authority and there is no other remedy

equally as beneficial, efficient or effective. Further, the subject matter of this case

involves the releasing of records for the purpose of informing the Public of critical

information the Public will need in order to better evaluate the propriety of government

actions. The Public has an immediate need for Michael Browns juvenile records and the

matter is an issue of public importance.

CONCLUSION

Unless this Court issues a preliminary and permanent writ of prohibition and/or

mandamus, Relators and the Public will be deprived of their right of access to public

information necessary to evaluate the propriety of government actions which have

subsequently sparked riots and protests. Relators respectfully request that the Court issue

a preliminary writ of prohibition and/or mandamus, as well as a permanent writ of

prohibition and/or mandamus vacating or otherwise reversing Respondents order

denying Relators the records they have sought, and compelling Respondent to produce

Michael Browns juvenile records.

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Respectfully submitted,

__/s/ John C. Burns____ John C. Burns, #66462 The Burns Law Firm, LLC 1717 Park Avenue St. Louis, Missouri 63104 314-275-0326 Telephone & Facsimile

john@burns-law-firm.com

__/s/ David Nowakowski____ David Nowakowski, #66481 1717 Park Avenue St. Louis, Missouri 63104 314-275-0326 Telephone & Facsimile david@burns-law-firm.com Attorneys for Relators GotNews, LLC (GotNews.Com) and Charles C. Johnson.

fortis cadere cedere non potest

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