340 So.2d 904 (Fla. 1976), 48264, State ex rel. Miami Herald Pub. Co. v. McIntosh

Docket Nº:48264.
Citation:340 So.2d 904
Opinion Judge:Author: Boyd
Party Name:STATE of Florida ex rel. MIAMI HERALD PUBLISHING COMPANY, etc., et al., Relators, v. Russell H. McINTOSH, Circuit Court Judge, Respondent.
Attorney:Parker D. Thomson, Susan W. Diner and Dan Paul of Paul & Thomson, Miami, for relators.
Case Date:July 30, 1976
Court:Supreme Court of Florida

Page 904

340 So.2d 904 (Fla. 1976)

STATE of Florida ex rel. MIAMI HERALD PUBLISHING COMPANY, etc., et al., Relators,


Russell H. McINTOSH, Circuit Court Judge, Respondent.

No. 48264.

Supreme Court of Florida.

July 30, 1976

Page 905

As Modified on Denial of Rehearing Jan. 10, 1977.

Page 906

Parker D. Thomson, Susan W. Diner and Dan Paul of Paul & Thomson, Miami, for relators.

Joseph P. Metzger, Michael B. Davis and Norman E. Taplin of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for respondent.

Harold B. Wahl of Wahl & Gable, Jacksonville, for Fla. Pub. Co., amicus curiae.

William C. Ballard of Baynard, Lang & Ballard, St. Petersburg, for Times Pub. Co., amicus curiae.

Talbot D'Alemberte and Patricia A. Seitz of Steel, Hector & Davis, Miami, for Post-Newsweek Stations, Fla., Inc., amicus curiae.

W. S. Rodgers, Jr., and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for The Tribune Co., amicus curiae.

William G. Mateer of Mateer, Harbert, Bechtel & Phalin, Orlando, John W. Fleming and Rex Conral of Fleming, O'Brian & Fleming, Fort Lauderdale, and Don H. Reuben, Lawrence, Gunnels, Samuel Fifer and James A. Klenk of Kirkland & Ellis, Chicago, Ill., for Gore Newspapers Co. and Sentinel Star Co., amicus curiae.

Dan Paul of Paul & Thomson, Miami, for The New York Times Co., amicus curiae.

Daniel Neal Heller of Heller & Kaplan, Miami, for The Miami Daily News, Inc., amicus curiae.

C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Fla. Society of Newspaper Editors, amicus curiae.

BOYD, Justice.

This cause is before us on petition for certiorari 1 to review the decision of the District Court of Appeal, Fourth District, reported at 320 So.2d 861 (Fla.App.4th DCA 1975), which purportedly conflicts with State ex rel. Miami Herald Publishing Co. v. Rose. 2

The facts of the case as alleged in the pleadings, and as argued both in the briefs and orally are as follows.

Three mortgage brokers and three corporate brokerage firms are charged with '. . . selling unregistered securities, selling securities while not registered as a securities salesman, securities fraud, grand larceny and conspiracy to sell unregistered securities and to commit grand larceny . . ..' These charges are the first to emerge from the Comptroller's statewide investigation into what he terms a mammoth securities and mortgage fraud within the State. Since this investigation has been the subject of widespread coverage by state and national press, the six criminal defendants joined in a Motion to Control Prejudicial Publicity, which motion was served only

Page 907

on counsel for the State and for the defendants and was heard along with other pretrial motions. Upon consideration of the motion, argument of counsel, a file of press clippings and the authorities presented by the parties to the criminal action, Respondent entered his first order in which he ordered:

'1. The defendant's Motion to Control Prejudicial Publicity, in order to afford a fair trial of this cause, is hereby granted and the Court orders as follows:

'A. Members of the news media shall not report any testimony presented and/or evidence exhibited in the absence of the jury unless same shall have been admitted in evidence by the Court, or is a public record, or is presented in open court in the presence of the jury;

'B. Defense Counsel, all members and employees of the Palm Beach County State Attorney's Office, all members and employees of the Attorney General's office, members and employees of the Division of Securities, and members and employees of the Office of the Comptroller, and all officials of the State of Florida, including the Comptroller and the Attorney General of the State of Florida, law enforcement officers, subpoenaed witnesses, bailiffs, clerks and other officials in attendance to this Court, shall not give or authorize any extrajudicial statement or interview relating to the trial of this cause or the parties or issues in the trial for dissemination by any means of public communication during the course of this trial, except they may quote from or refer without comment to public records, or testimony or evidence that has been admitted in evidence during the course of this trial.

'2. The intendment of this Order is to prevent publicity of a nature that would tend to adversely affect that rights of the defendants to a fair trial.'

On his morning arrival at the courtroom Relator Schwartz, a reporter for Relator newspaper, was instructed to pick up a copy of this order, which he did. That afternoon, Relators sought revocation of Respondent's first order; a hearing was scheduled for the following morning. At that hearing, Relators filed a Motion to Vacate Respondent's first order, supporting their Motion with a memorandum of law. No additional factual support for the first order was submitted. At the conclusion of the hearing, Respondent entered his second order in which he not only denied Relators' Motion on the ground that they had no standing to challenge the first order but he also made the following gratuitous 'findings of fact':

'That there has been a considerable amount of publicity by news media throughout the State, some of which quotes high government officials on the subject matter of this prosecution;

'That it is reasonable to expect that this publicity will continue during the course of this trial; and

'That the continuance of this publicity if it is permitted to include proffered testimony and/or documents or other physical evidence which are inadmissible against the defendants or opinions of public officials, attorneys, court personnel, and other restrained by the contested order constitutes a 'clear and present danger' that the defendants in this prosecution will not receive a fair trial unless the order entered herein be enforced.'

On October 15, 1975, immediately after the denial of their Motion, Relators sought expedited review in the District Court of Appeal, Fourth District, by filing a Suggestion for Writ of Prohibition, which Suggestion was denied Per Curiam, with a dissenting opinion on October 17, 1975. The selection of the jury which began October 14, 1975, concluded on Friday, October 17, 1975. The taking of testimony commenced on Monday, October 20, 1975. Thereafter, on October 28th, some eleven days after the decision of the District Court, Petitioners filed for relief in this Court, seeking, among other things, a Stay Order suspending operation of the trial judge's orders. An emergency hearing was set and oral argument heard on Monday, November 3, 1975. After

Page 908

careful review of the record, we made the following determinations: 3

'1. That the Petition for Prohibition, Mandamus and Stay Order is denied.

'2. Pursuant to Section 2(a), Article V, Constitution of Florida, the Court has classified the Petition as a Petition for Conflict Certiorari . . . Relief requested for any other constitutional relief is denied.

'3. (The parties) shall file their briefs on jurisdiction and merits . . . with oral argument . . . to be heard on jurisdiction and merits on November 17th. . . .'

Briefs having been filed by all parties and a multiplicity of amicus curiae and oral argument having been heard, we find that in considering this petition for certiorari we are confronting the monumental task of balancing equally important constitutional rights: the right of a defendant to a fair trial and the right of the public to know facts by way of a free press.


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