Fox v. State, SC98909

CourtUnited States State Supreme Court of Missouri
Writing for the CourtMary R. Russell, Judge
Decision Date15 March 2022
PartiesMARY FOX, et al., Respondents/Cross-Appellants, v. STATE OF MISSOURI, et al., Appellants/Cross-Respondents.
Docket NumberSC98909

MARY FOX, et al., Respondents/Cross-Appellants,

STATE OF MISSOURI, et al., Appellants/Cross-Respondents.

No. SC98909

Supreme Court of Missouri, En Banc

March 15, 2022


Mary R. Russell, Judge

Five public defenders and three criminal defendants filed an action for declaratory and injunctive relief, challenging the constitutional validity of certain statutes that relate to victims of sexual offenses. The provisions were enacted by Senate Bill No. 569 ("SB 569") in 2020. Most importantly, the action attacked section 595.201, [1] which requires criminal defense attorneys to provide information to victims of sexual assault offenses. The circuit court 1) determined section 595.201 violated defense attorneys' rights to freedom of speech, 2) declared it constitutionally invalid as applied to defense counsel, and 3) enjoined its enforcement. The circuit court, however, rejected various challenges


to SB 569 as a whole by holding passage of the law did not violate procedural limitations-namely, the original purpose, clear title, and single subject requirements- imposed by the Missouri Constitution. The judgment is affirmed.


In 2020, the General Assembly passed legislation addressing issues relating to victims of sexual assault offenses. SB 569, upon introduction, concerned evidentiary collection kits in sexual assault cases.[2] Before final approval, four provisions-including section 595.201.2(4), which is of particular importance in this case-were added.[3] That provision states:

Before commencing an interview of a survivor, a law enforcement officer, prosecuting attorney, or defense attorney shall inform the survivor of the following
(a) The survivor's rights pursuant to this section and other rules and regulations by the department of public safety and the department of health and senior services which shall be signed by the survivor of sexual assault to confirm receipt;
(b) The survivor's right to consult with an employee or volunteer of a rape crisis center during any interview by a law enforcement official, prosecuting attorney, or defense attorney, to be summoned by the interviewer before the commencement of the interview, unless no employee or volunteer of a rape crisis center can be summoned in a reasonably timely manner;
(c) The survivor's right to have a support person of the survivor's choosing present during any interview by a law enforcement officer, prosecuting attorney, or defense attorney, unless the law enforcement officer, prosecuting attorney, or defense attorney determines in his or her good faith professional judgment that the presence of that individual would be detrimental to the purpose of the interview; and
(d) For interviews by a law enforcement officer, the survivor's right to be interviewed by a law enforcement official of the gender of the survivor's choosing. If no law enforcement official of that gender is reasonably available, the survivor shall be interviewed by an available law enforcement official only upon the survivor's consent[.]

In August 2020, one day before the effective date of the legislation, individuals associated with the Missouri State Public Defender-Mary Fox, Megan Beesley, Paige Bremner, Erich Fonke, and Brian Horneyer-and criminal defendants-Dawan Ferguson, Sean Williams, and Donnell Jackson-(collectively, "Challengers") filed an action for declaratory and injunctive relief against the State of Missouri and Attorney General Eric Schmitt (collectively, the "State"). They alleged section 595.201 violated 1)defense attorneys' right to freedom of speech under the federal and state constitutions; 2)separation of powers principles under the Missouri Constitution; 3) this Court's ability to regulate the legal profession under the Missouri Constitution; 4) criminal defendants' rights to counsel and confrontation under the federal constitution; and 5) criminal defendants' rights to due process and counsel under the Missouri Constitution. Challengers further contended SB 569 violated the original purpose, reading, clear title, and single subject requirements of the Missouri Constitution. The circuit court issued a temporary restraining order prohibiting enforcement of section 595.201 against defense attorneys.


Challengers moved for a preliminary injunction. At a hearing, three individuals- Mary Fox, Megan Beesley, and Erich Fonke-testified for Challengers. They explained that informing victims about the rights contained in section 595.201.2(4) would adversely affect representation of their clients. Fox indicated complying with the provision would create an impression that defense attorneys were working for the prosecution, create conflicts of interest, and violate other duties to clients. She testified attorney-client relationships would likely be harmed. Beesley also indicated complying with the statutory requirements would be adverse to client interests. Fox also expressed concern regarding section 595.201.3(11)'s definition of "survivor," indicating she may need to provide the required information to many individuals in various contexts.

Laura Dunn, an expert regarding sexual assault victims' rights, testified for the State. She explained sexual assault victims often report having negative interactions with aspects of the criminal justice system, including dealings with prosecutors and defense attorneys, which can create secondary trauma and reduce cooperation. Dunn stated survivors are more willing to engage in the process when support advocates are present. She testified that, for survivors to make use of the rights listed in section 595.201.2(4), they must receive information prior to the interview. Dunn opined measures other than providing the rights directly before the beginning of an interview would be ineffective. She said survivors are often confused and traumatized, which may hinder their ability to retain information over time. Dunn did not provide specific evidence of interactions with defense attorneys creating secondary trauma and was unaware of other victims' rights bills that required defense attorneys to provide information.


The circuit court sustained Challengers' motion for a preliminary injunction. Challengers and the State later agreed to an amended temporary restraining order, which was extended until the entry of a final judgment. Subsequently, the circuit court issued a judgment and memorandum opinion, which found for Challengers on all substantive constitutional claims[4] and declared section 595.201 constitutionally invalid as applied to defense attorneys. Regarding the free speech claims, it determined 1) no evidence established defense attorneys caused the harms SB 569 was intended to address; 2) no credible evidence showed the State had an interest in requiring defense attorneys to make the disclosures required by section 595.201.2(4); and 3) no evidence demonstrated an absence of less restrictive alternatives to having defense attorneys provide the disclosures. The circuit court further held that, while procedural aspects of the passage of SB 569 created close questions, the presumption of constitutional validity controlled. It declined, therefore, to invalidate the entire statutory scheme. The State appeals, and Challengers cross-appeal.[5]

Standard of Review

In a court-tried case, the circuit court's judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, erroneously declares the law, or erroneously applies the law. Mo. State Conf. of NAACP v. State, 607


S.W.3d 728, 731 (Mo. banc 2020). Decisions regarding the constitutional validity of a statute are subject to de novo review. Priorities USA v. State, 591 S.W.3d 448, 452 (Mo. banc 2020). A statute is presumptively valid and will be upheld unless it clearly and undoubtedly violates a constitutional provision. Id. Nevertheless, this Court must declare a statute invalid if it conflicts with the constitution. Id. And, although "[c]onstitutional attacks based upon the procedural limitations contained in article III, sections 21 and 23 [of the Missouri Constitution] are not favored[, ]" the same standard applies. Calzone v. Interim Comm'r of Dep't of Elementary & Secondary Educ., 584 S.W.3d 310, 315 (Mo. banc 2019).


The State alleges the circuit court erroneously determined section 595.201.2(4) was constitutionally invalid as applied to defense attorneys. It argues that provision did not violate defense attorneys' right to freedom of speech; separation of powers principles; this Court's ability to regulate the legal profession; or criminal defendants' constitutional rights.[6] On cross-appeal, Challengers contend the circuit court improperly determined the General Assembly did not violate the original purpose, clear title, and single subject requirements imposed by the Missouri Constitution when passing SB 569.[7]


I. Free Speech Claims

The State challenges the circuit court's judgment that section 595.201.2(4)'s requirements violate defense attorneys' free speech rights. State laws that restrict freedom of speech are prohibited by the First and Fourteenth Amendments. Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 138 S.Ct. 2361, 2371 (2018) ("NIFLA"). Laws that regulate speech based on its communicative content "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." Id. Notices requiring individuals to speak a specific message constitute content-based regulations. Id. Importantly, speech uttered by "professionals" receives constitutional protection. Id. at 2371-72. Yet less protection is provided when laws require "professionals to disclose factual, noncontroversial information in their 'commercial...

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