IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT

_______________________________________________________________________ STATE OF MISSOURI EX REL. ) GOTNEWS, LLC AND ) CHARLES C. JOHNSON, )

) Missouri Court of Appeals E.D. – ) ) Case No. ___________________

Relators, ) ) St. Louis County Circuit Court ) Case No. 14SL­JU00861 ) (Family/Juvenile Court)

vs. ) )

HON. ELLEN SIWAK, ) CIRCUIT COURT JUDGE, DIVISION 11, ) MISSOURI CIRCUIT COURT, ) TWENTY­FIRST JUDICIAL CIRCUIT, ) COUNTY OF ST. LOUIS, )

) Respondent. ) ________________________________________________________________________

PETITION AND SUGGESTIONS IN SUPPORT

OF PRELIMINARY AND PERMANENT WRITS OF PROHIBITION AND/OR

MANDAMUS

________________________________________________________________________

John C. Burns, #66462 The Burns Law Firm, LLC 1717 Park Avenue St. Louis, Missouri 63104 314­275­0326 Telephone & Facsimile john@burns­law­firm.com

1

David Nowakowski, #66481 1717 Park Avenue St. Louis, Missouri 63104 314­275­0326 Telephone & Facsimile david@burns­law­firm.com Attorneys for Relators GotNews.Com and Charles C. Johnson.

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

liability company and owner of GotNews.Com, an Internet­based 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 Respondent’s September 9, 2014 Order and to compel Respondent to

release the juvenile records of Michael Brown Jr., date of birth May 20, 1996.

STATEMENT OF FACTS

On August 9, 2014, Michael Brown, Jr., an unarmed, 6’4” tall, 300 pound, 18

year­old African­American 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 “story” to become quite possibly the biggest

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

2

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. Brown’s death

has become a rallying cry and casus belli for those who believe the 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 Brown’s 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 Brown’s death, the

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

particular popular portrait of Brown as a fun­loving, poetic, up­and­coming young man,

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

unbalanced and one­sided, portraying Brown, almost without exception, in the most

positive light possible, without examining any troubling elements in the young man’s life

(See e.g., Ex.’s J­M). For example: his stepfather’s long­standing status as a key lieutenant

in the Bloods gang organization, or Brown’s history of violence as a juvenile delinquent.

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

3

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).

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

211.321 in the 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 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 Post­Dispatch, which had filed a

similar petition as Relators. The court took both petitions under consideration.

4

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, LLC’s First Amended Petition, and having considered the relevant

statutes, case law, and arguments of counsel, denies the petition.” Id. 1

Shortly after receiving the court’s 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 Clerk’s Office, citing that the records are confidential pursuant to section

211. 321, RSMo. …” 2

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

1 This one sentence statement constitutes the court’s full reasoning given on the matter. See Ex. G. 2 the denial letter goes on to quote from V.A.M.S. Section 211.321.1. See Ex. I.

5

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 not

uncovered any of Brown’s 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 Ferguson’s

business district has been completely destroyed, and rioting, looting, shootings, and

violence have spread to nearby villages and towns. Protestors and rioters have shut down

roads, courthouses and government buildings, interstate highways, and threatened to

overrun police headquarters. Dozens of school districts temporarily shuttered. Hundreds, if

not thousands of businesses closed down out of fear. The Governor of Missouri declared a

state of emergency and deployed thousands of troops to restore order.

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.

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

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

6

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 BROWN’S JUVENILE RECORDS.

A. Respondent Lacks Any Authority To Deprive Relators Of Michael

Brown’s Juvenile Records And Must Be Compelled To Produce The Records For Relators.

Respondent’s 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 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).

7

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 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

8

court. V.A.M.S. § 211.321.2.

Additional guidance is supplied by Rule 122.02c­d (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 court’s 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 122.02c­d, as well as the case law interpreting these laws and rules,

form the boundaries of the Respondent’s general authority over juvenile records.

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. Respondent’s general jurisdiction over juvenile records has

limits, and Respondent cannot simply manufacture authority out of thin air. Thus, the

9

discretionary authority of Respondent’s denial of Relators’ request for Brown’s 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 child’s 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.

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, but 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,

10

endured or suffered by the adult when they were a child. Such stigma can radically stunt

one’s 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

not the state’s 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 it’s 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 child’s 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

11

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

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

rights of others, vis­à­vis 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.

Whatsmore, 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 Brown’s juvenile records, because the juvenile subject no

longer lives. Maintaining the privacy of Michael Brown’s records may well serve a

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.

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. V.A.M.S. § 211.271.3

explains:

12

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 privacy rights afforded to living juveniles are non­transferable. “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. Harold’s 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 juvenile … and not of the

[juvenile’s] parents.” State ex rel. Rowland v. O’Toole, 884 S.W.2d 100, 102 (Mo. Ct. App.

E.D. 1994)

The privacy offered by V.A.M.S. Chapter 211 to living juveniles is not an

“all­encompassing or blanket prohibition against the use of all juvenile records and related

evidentiary matters in all cases not otherwise involving the juvenile...” Smith v. Harold’s

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” on the use of juvenile records;

211.271.3 only applies to use of child’s statement against the child). Rather, the purpose

of keeping the records private is to protect the child in the event civil or criminal

13

proceedings are later brought against the child. Id. “A juvenile’s right of confidentiality as

to juvenile records is a ‘qualified’ and not an ‘absolute’ privilege.” State ex rel. Rowland v.

O’Toole, 884 S.W.2d at 103. “[Regarding V.A.M.S. § 211.271.3] 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 juvenile’s

own statements against himself are not subject to the privilege.” Id., at 102­03. (internal

citations omitted).

In Smith, an 18 year­old 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. Halstead’s 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 Halstead’s juvenile record, against the strenuous

wishes of Halstead’s 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.

14

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 child’s case…” V.A.M.S. § 211.321.6. As another

example, a juvenile’s admissions and statements have also been used to preserve another

individual’s Sixth Amendment rights. “[W]e conclude that the right of confrontation is

paramount to the state’s 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

petitioner’s 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 State’s 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…” O’Toole, 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

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

15

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 O’Toole

with Smith v. Harold’s Supermarket. In the latter case, where the deceased juvenile’s

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

issue of the deceased juvenile’s future earning potential at issue, by seeking recovery, in

part, for his lost financial earning potential. Smith, at 861­62. 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

juvenile’s future services. Id., at 862. The Court of Appeals held that the mother’s

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.

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

211 are exclusive, non­transferable 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 juvenile’s 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 can never be prosecuted in any court of law. Similarly,

16

Michael Brown cannot be subject to civil suit. He cannot speak with his juvenile officer.

He will never go to technical school or apply for a job – his future ended. In short, the

purpose of the statutory privacy protections is completely and utterly moot. V.A.M.S.

Section 211.321 requires those requesting the records to demonstrate a “legitimate interest”

in the records. Logically, the records should 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, as more fully described, infra.

3. The State’s Public Policy Interest In Protecting Brown’s Records Has Been Mooted By Brown’s 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 court’s discretion and jurisdiction, boundaries which shift based on the

personal circumstances of the juvenile.

a. Critical changes in contextual 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

17

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

authority to make substantive decisions regarding the juvenile. Such 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 Respondent’s 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 Brown’s death, Brown has no cognizable legal 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, Brown’s death has

transformed Respondent’s role into a ministerial one, akin to a custodian of records.

And there are other examples of this.

Generally, the juvenile court only has jurisdiction over juveniles who

violate state or municipal law prior to the age of seventeen (17). V.A.M.S. § 211.031;

18

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 twenty­one (21). V.A.M.S. § 211.041.

However, in the latter example, once a juvenile turns twenty­one, 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 twenty­one…

[A]ttaining the age of twenty­one 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). Again, changing conditions can automatically work to strip

Respondent of meaningful discretion, and transform her role into a

non­discretionary, ministerial capacity. In this example, the non­discretionary act of

simply certifying a juvenile as an adult.

b. Upon Brown’s death, Respondent’s role transformed from

a judicial to a ministerial capacity, Respondent thus lost discretion to deny the release of the Brown juvenile records, and the Brown juvenile records reverted to the public domain.

As discussed, supra, as a subject juvenile’s critical circumstances

permanently change, a juvenile court can be stripped of some of its discretionary

authority. It is this loss of discretion that transforms the role of the juvenile court from a

19

judicial to a ministerial/administrative capacity. In the context of juvenile records the

juvenile court’s discretion is the only thing that stands between the Public and a subject

juvenile’s 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.

From a public policy standpoint, per V.A.M.S. § 211.011, Smith,

O’Toole, and State v. Mahurin, et al, cited supra, the state only has an interest in any

juvenile’s records so long as the subject juvenile maintains an interest in those records, or

so long as the juvenile’s 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 state’s interest has been extinguished. The sole raison

d'être 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 state’s.

The state’s interest in his records became moot, as the purpose of the Chapter 211, that is,

the juvenile’s “best interest” and “welfare,” could never be implemented.

With no interest to defend, Respondent simply lost discretion to deny

Relators’ request for the Brown juvenile records. Lacking discretion to deny the records,

Respondent’s 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 for that matter, the juvenile records, by default,

20

reverted to the public domain. Respondent’s 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. As a result,

Respondent’s denial of 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 Brown’s Juvenile Record.

a. Other Jurisdictions have recognized the right of public access to juvenile records of deceased individuals.

Relators know of no other Missouri case, other than Smith v. Harold’s

Supermarket, discussed supra, governing requests of the juvenile records of deceased

juveniles. Nationally, the cases are exceedingly rare. However, the general consensus of

the cases uncovered by Relators is that the records revert to the public domain because

there simply exists no interest to protect.

For example, in In re Elijah S., 125 Cal. App. 4th 1532 (Cal. App. 1st

2005), the San Francisco Chronicle, among other news outlets, had sought the juvenile

records of a deceased child, as part of a journalistic investigation. Id., at 1538. The juvenile

21

court had released the records, and the San Mateo County Human Services Agency

appealed. Id. The court held that the release of the deceased children’s records was

appropriate, subject to in camera review of the documents prior to release, and redaction of

any information affecting the rights of and interests of other minors. Id., at 1539. The court

found: “In considering such a petition for obtaining access to juvenile case records, the

juvenile court must balance the interests of the minor and those of the public, and permit

disclosure only where not inconsistent with the best interests of the juvenile whose file is

sought. However, the statute provides more access to certain records in the interests of the

public. Specifically, under section 827, subdivision (a)(2), juvenile case files of a deceased

child ‘who was within the jurisdiction of the juvenile court pursuant to Section 300, shall

be released to the public pursuant to an order by the juvenile court after a petition has been

filed and interested parties have been afforded an opportunity to file an objection.’ (Italics

added). Thus, where the child whose records are sought has died, no weighing or

balancing of interests is required; the files ‘shall be released’. . .” In re Elijah S., 125

Cal. App. 4th 1532, 1542­1543 (Cal. App. 1st Dist. 2005) (internal citations omitted)

(emphasis added and in the original).

b. Respondent acted unlawfully in denying Relators’ request for public records.

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

22

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 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 public’s 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 public’s right of access … Where there are higher interests favoring

nondisclosure, courts and the legislature have routinely seen fit to close some public

23

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 Brown’s 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, LLC’s 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

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 Brown’s juvenile

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

unlawfully and must be compelled to produce Brown’s juvenile records to Relators.

B. Even if the State Must Balance The Competing Interests Of The

Public’s Right Of Access And The Juvenile Court’s Need To Safeguard The Welfare Of Juveniles, Respondent Still Acted Without Authority And Unlawfully And Must Be Compelled To Turn Over Brown’s Records.

1. In weighing the competing interests, the scale tips in favor

of access to the records.

24

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

the public’s right of access with the juvenile court’s need to safeguard the welfare of

juveniles, the scale clearly tips in favor of the Public’s right of access. Therefore,

Respondent must be compelled to turn over Brown’s 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

protect the court’s ability to obtain confidential information.

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

juvenile court’s determination of whether or not to turn over juvenile records involves

“striking a balance between the public’s 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

25

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

law­abiding 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 society’s

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 trial court failed to strike the required balancing of interests. Id.,

at 233­34, Compare with Smith v. Harold’s Supermarket, Inc. 685 S.W.2d at 863 (privacy

offered by V.A.M.S. Chapter 211 to living juveniles is not an “all­encompassing 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 to families; [Compare with

State ex rel. Rowland v. O’Toole, 884 S.W.2d 100 at 102, (“Thus, it is clear the privilege is

that of the juvenile … and not of the [juvenile’s] parents.”)] (2) deceased juveniles have no

26

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. [Compare with 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.”)] 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 juvenile’s record. Id., at 234­35.

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

non­transferable. Further, the objectives of Chapter 211, namely Brown’s rehabilitation and

well­being, 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

27

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 confidential informants used in deriving or generating any of the

Brown juvenile records. However, Respondent’s categorical denial of Brown’s 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,

Respondent’s denial was unlawful and beyond her authority and discretion, and

Respondent must be compelled to produce the records for Relators.

2. The Public’s interests of Democracy and government accountability tip the scales in favor of granting Relators access to Brown’s records; the Public relies and depends upon the press to accurately inform them about matters involving the courts and judicial branch and government accountability.

“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

28

the responsibility of the press to report the operations of government. 420 U.S. at 491­92 (citation omitted).”

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

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

protested, shut­down interstates and schools and businesses, rioted, looted, pillaged,

burned, and/or engaged in violence. A city has been burned to the ground. These actions

have been taken – right or wrong – 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 super­Meme. In dozens of cities,

protesters have staged die­ins, laying on streets, pretending to be dead in reference to

Michael Brown’s lifeless body laying on the warm pavement. “Hands­up, Don’t Shoot!”

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 super­Meme in order to leverage it for various socio­political 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

29

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

Relators take no position either way on any of this, but simply wish to draw

attention to the existence of this state of affairs. 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 matter of serious public importance – literally millions of

people have been impacted, and cities have burned, lives have been changed. Further, a

shadow has been cast over the system of justice in Saint Louis County.

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

30

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 “public’s right to inspect court and other public records

… stems from the public’s presumed interest in the integrity and impartiality of its

government … [O]pen records do not simply accommodate the public’s 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 300­01 (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 “killer”

police officer. Thus, not only has any “justification for sealing the records abate[ed],” but

even if it hadn’t, 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.

In the months and years that follow, the Public will be encouraged to make

31

decisions based on their perception of the Brown SuperMeme. The challenge, from a truth

in journalism standpoint is that the SuperMeme is largely composed of three,

self­reinforcing sub­memes, each of which reject Popperian Falsifiability : (1) that Brown 3

was “murdered” by Wilson; (2) that the courts and Saint Louis County Prosecutor Robert

McCullough covered it up, resulting in Wilson not being indicted by the grand jury; and (3)

that African Americans are deliberately targeted and abused by police and authorities for

sadistic, racist purposes.

If these basic theses of the Brown SuperMeme cannot be proven or

disproven, then the Public is in serious danger of being manipulated through clever

propaganda as the playthings of oligarchs and demagogues. This danger is a serious, open 4

and obvious threat to Democracy. As some of the Public has begun to understand this

threat, this knowledge has only served to enhance popular cynicism and distrust of

government, drastically eroding faith in the courts as well.

Clearly, Saint Louis County Prosecutor Robert McCullough has recognized

this danger, and that the only possible solution to such a threat was complete transparency

3 From Wikipedia: “Falsifiability or refutability of a statement, hypothesis, or theory is an inherent possibility to prove it to be false. A statement is called falsifiable if it is possible to conceive an observation or an argument which proves the statement in question to be false. In this sense, falsify is synonymous with nullify, meaning not “to commit fraud” but “show to be false.” Some philosophers argue that science must be falsifiable. For example, by the problem of induction, no number of confirming observations can verify a universal generalization, such as All swans are white, yet it is logically possible to falsify it by observing a single black swan. Thus, the term falsifiability is sometimes synonymous with testability. Some statements, such as It will be raining here in one million years, are falsifiable in principle, but not in practice.” http://en.wikipedia.org/wiki/Falsifiability (last accessed December 3, 2014. 4 E.g., the Gulf of Tonkin Incident, see http://www.zerohedge.com/news/2014­08­09/obama­celebrates­50th­anniversary­gulf­tonkin­resolution­bombing­iraq (last accessed December 3, 2014), or Jonathan Gruber, see http://www.forbes.com/sites/michaelcannon/2014/11/30/grubergate­part­1­the­stupidity­of­the­american­voter/ (last accessed December 3, 2014) and https://www.youtube.com/watch?v=G790p0LcgbI (last accessed December 3, 2014).

32

and openness on this issue. “Justice is best served when it is done within the full view of

those to whom all courts are ultimately responsible ­ the public.” Pulitzer, at 301.

However, the problem is that even with this excellent display of

transparency, the Public is still privy to all the key facts. There are other critical pieces of

information which have the potential to further shed light on the Brown SuperMeme. Such

information carries the prospect of getting much further towards proving or disproving the

sub­memes. The Public – especially the public within the State of Missouri and the Saint

Louis Region, who have been impacted most dramatically – have endured the SuperMeme,

the panic and stress of this matter enough to deserve access to the remaining pieces to the

puzzle.

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 Brown’s 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 teen­aged young man, with a bright future and a relatively non­violent past. See

33

Exhibit J, (where Brown’s family’s 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.

On the other hand, if he had a history of violence, then Brown’s strong­arm robbery of a

convenience store, and immediately subsequent altercation with Wilson and resulting death

more plausible.

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

The Court’s 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

34

Brown’s 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 Brown’s 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. Harold’s Super

Market and O’Toole, as well as V.A.M.S. § 211.321 and § 211.041, cited supra, brought

him outside of the juvenile court’s 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 non­discretionary act contrary to the directions of the law and was

without jurisdiction to do the non­discretionary 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

35

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 Brown’s juvenile records. Upon the death of Brown, the nature of Respondent’s

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 Brown’s 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

36

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 Respondent’s order denying

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

Brown’s juvenile records.

Respectfully submitted,

__/s/ John C. Burns____ John C. Burns, #66462 The Burns Law Firm, LLC 1717 Park Avenue St. Louis, Missouri 63104 314­275­0326 Telephone & Facsimile john@burns­law­firm.com __/s/ David Nowakowski____ David Nowakowski, #66481 1717 Park Avenue St. Louis, Missouri 63104 314­275­0326 Telephone & Facsimile david@burns­law­firm.com Attorneys for Relators GotNews, LLC (“GotNews.Com”) and Charles C. Johnson.

37