UPDATE: U.S. District Court Judge Alan B. Johnson denied the plaintiffs’ request to proceed anonymously on Thursday afternoon and has asked them to file an amended complaint with their real names. “Plaintiffs do not meet the high pseudonymity bar reserved for exceptional cases,” Johnson wrote in his ruling.
“The bottom line is this,” Johnson wrote, “Lawsuits are public events, and the public, especially here, has an important interest in access to legal proceedings. Plaintiffs may not levy serious accusations without standing behind them.”
The plaintiffs have until April 20 to file an amended complaint. —Ed.
By Maggie Mullen, WyoFile
A University of Wyoming sorority is facing a civil lawsuit for inducting a transgender member.
Two Cheyenne attorneys filed the lawsuit in the U.S. District Court for the District of Wyoming last week on behalf of seven unnamed members of Kappa Kappa Gamma at UW. The suit alleges that the sorority broke its bylaws, breached housing contracts and misled members when it admitted the first transgender woman in its history.
The attorneys also filed a motion asking the court to grant anonymity to their clients.
“The sensitive facts involved in this case, as well as the strong likelihood that the nature of this lawsuit will result in threats and harassment from third-parties against individual students and their families, merit this Court’s approval,” according to the motion.
Unidentified plaintiffs are very unusual, several legal experts told WyoFile.
“Anonymous plaintiffs are exceedingly rare. Unknown defendants are commonplace,” said Noah Novogrodsky, a professor at UW College of Law, who teaches civil procedure. The suit’s defendants include Kappa Kappa Gamma’s parent organization, its national president and the transgender member.
A judge will have final say on the request for anonymity, but the typical transparency of who’s bringing suit is deliberate, according to Melissa Alexander, who also teaches civil procedure at UW. “It facilitates public scrutiny of our judicial system, which is critical for both legitimacy and accountability,” she said.
“The idea is, because our public funds our court systems, they have a right to know who’s using their courts,” Alexander said. Arbitration, she noted, is a non-taxpayer-funded option for parties interested in resolving disputes privately.
The plaintiffs are seeking “all remedies available” including removing the transgender member from the sorority, prohibiting “any other man” from joining, plus monetary and punitive damages from the organization.
Both John Knepper and Cassie Craven, co-counsel for the plaintiffs, declined to comment. In February, Craven was censured by the Wyoming Supreme Court in part for revealing confidential and harmful information about a client.
Precedent
While rare, anonymous plaintiffs are not unheard of in civil litigation. Most people are probably familiar with Roe v. Wade, Alexander said, referring to the recently overturned landmark 1973 United States Supreme Court case that established a woman’s right to abortion. The plaintiff used “Jane Roe” as a pseudonym because the case was highly personal and sensitive in nature.
Attorneys for the Kappa Kappa Gamma plaintiffs are making a similar argument for anonymity, citing “intense discussion of the behavior of individuals within their intimate living space.” Within the complaint, the plaintiffs accuse the transgender defendant of watching other women, asking them personal questions and making some members feel uncomfortable. The plaintiff’s attorneys also requested anonymity for the transgender defendant — whom they refer to as “Terry Smith,” a pseudonym (and with “he/him” pronouns) — “since this individual has similar privacy and safety interests.”
The motion acknowledges the “social media maelstrom that surrounds these issues generally and the fact that this matter has already attracted significant press coverage.” It does not mention that news outlets, tabloids and political advocacy organizations have published the defendant’s name and photo numerous times in the past six months.
Far-reaching press coverage began last fall after the Branding Iron — UW’s student newspaper — reported on the historic Greek-life induction of a transgender student, who was quoted in the story. Then in December, national and international press swarmed once again when Todd Schmidt, a Laramie resident, protested the arrangement with a banner in the UW Student Union. Several students gathered together to physically block the sign, which used the student’s name and declared that she was a man, from view. It was removed that same day. Schmidt also lost the right to table in the Union for the next year, which got the attention of lawmakers who denounced UW’s decision in a letter.
Days after the incident, police issued a trespass warning to Schmidt after he appeared outside Kappa Kappa Gamma, according to reporting by the Casper Star-Tribune.
Exceptional circumstances
“It is very unusual for plaintiffs in civil cases to be allowed to proceed anonymously, and it’s a really high bar,” said Jennifer Wieland, a Kansas-based attorney who has written about anonymous civil suits in the 10th Circuit, which includes Wyoming and Kansas.
The rules that govern civil proceedings in U.S. district courts require all parties be named. Unlike other circuits, the 10th Circuit has not enumerated the factors a court must consider when making an exception to that rule by granting anonymity. However, Wieland points to 10th Circuit precedent that states “there may be exceptional circumstances warranting some form of anonymity in judicial proceedings.” (While the judge in that case outlined the necessary conditions, the court ultimately ruled that the plaintiff did not meet them.)
Those exceptional circumstances mainly include two conditions, Wieland said: matters of highly sensitive and personal nature, and a real danger of physical harm. To Wieland’s knowledge, no civil case has cleared the bar in the 10th Circuit, unlike other circuits.
Few exceptions are made because the judicial system relies on the existence of “a case or controversy,” Wieland said. “It’s important for the actual people who have the controversy to put themselves out there when a court is deciding it. That’s the reason why courts exist.”
The plaintiffs’ attorneys argue their case meets the conditions for anonymity and that “pseudonyms will protect parties from significant psychological distress that has already accompanied prior disclosures in this matter.” The motion points to the example of Schmidt showing up at the Kappa Kappa Gamma house as a “very real threat.”
The attorneys did not file an accompanying affidavit — a written statement confirmed by oath or affirmation for use as evidence in court — since that would require a signature and “would defeat the very reason for Plaintiffs’ request.”
“They claim a risk of retaliatory harm, but that’s not supported by any evidence,” Alexander said. “They didn’t file an affidavit and what they referenced ironically was potential harm really to the transgender defendant.”
The attorneys point to the “intense public concern” in the case, but say “the actual names of the individuals involved is likely the least relevant fact before this Court,” the motion states.
“It’s almost like they’re taking the fact that this is a case of significant public interest, which it is, and they’re trying to use that to argue for anonymity,” Alexander said. “But, arguably, the significant public interest argues for just the opposite.”
The plaintiffs would be willing to disclose their identities and sensitive information under a protective order, the motion states.
A judge had not ruled on the motion by press time.
WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.
