Florida Freedom Newspapers, Inc. v. McCrary

• Decision Date: 11 February 1988
• Docket Number: No. 69660,69660
• Citation: 13 Fla. L. Weekly 92,520 So.2d 32
• Parties: 13 Fla. L. Weekly 92, 14 Media L. Rep. 2374 FLORIDA FREEDOM NEWSPAPERS, INC., Petitioner, v. Robert L. McCRARY, Jr., Circuit Judge, Fourteenth Judicial Circuit, State of Florida, Respondent.
• Court: Florida Supreme Court

Page 32

520 So.2d 32

13 Fla. L. Weekly 92, 14 Media L. Rep. 2374

FLORIDA FREEDOM NEWSPAPERS, INC., Petitioner, v. Robert L. McCRARY, Jr., Circuit Judge, Fourteenth Judicial Circuit, State of Florida, Respondent.

No. 69660.

Supreme Court of Florida.

Feb. 11, 1988.

Franklin R. Harrison and William A. Lewis of Sale, Brown & Smoak, Chartered, Panama City, for petitioner.

Robert A. Butterworth, Atty. Gen. and Louis F. Hubener, Asst. Atty. Gen., Tallahassee, for respondent.

Richard J. Ovelmen, Miami, Laura Besvinick of Sharpstein & Sharpstein, P.A., Coconut Grove, Parker D. Thomson and Sanford L. Bohrer of Thomson, Zeder, Bohrer, Werth & Tazook, and Berald B. Cope of Greer, Homer, Cope & Bonner, P.A., Miami, amici curiae for The Miami Herald Pub. Co., The Florida Press Ass'n, The Florida Society of Newspaper Editors, and The Florida First Amendment Foundation.

C. Gary Williams and Michael J. Glazer of Ausley, McMullen, McGehee, Carothers and Proctor, Tallahassee, amicus curiae for Tallahassee Democrat, Inc.

SHAW, Justice.

We review Florida Freedom Newspapers Inc. v. McCrary, 497 So.2d 652 (Fla. 1st DCA 1986), to determine if the lower court correctly construed the first and sixth amendments of the United States Constitution. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The facts of the case are as follows. A newspaper in general circulation in Jackson County reported that prisoners in the county jail were being mistreated. The story was followed up by other media and papers and became a matter of public concern. In due course, two jailers with the Jackson County Sheriff's Department were charged with criminal mistreatment of prisoners. Both filed motions to control prejudicial pretrial publicity seeking two specific measures: first, orders preventing public disclosure of certain pretrial discovery information which was to be furnished to the two defendants by the state attorney's office under Florida Rule of Criminal Procedure 3.220; second, orders prohibiting public comment on the evidence and charges by members of the state attorney's office, defense counsel, members of the sheriff's department, potential witnesses, and various other individuals. After a hearing on the motions, the trial court entered an order granting, in part, the measures requested in the motions. Later, after an in-camera inspection of the discovery materials, the trial court entered orders prohibiting the release of existing discovery materials and future discovery materials pending an in-camera inspection. Concerning the requested prohibition on comment, the trial court found the request to be too broad and limited the prohibition to comments by the state attorney's office and sheriff's department. The orders were based on findings that the discovery material was graphically incriminating, containing materials which might not be admissible at trial, and that the prosecutor, sheriff, and other persons had made public statements prejudicial to the defendants. The trial court made clear that it was not prohibiting the publication of any information in the possession of the press or which might come into its possession, and that it was not closing any judicial proceedings to the press or public. The trial court noted that the defendants had asserted their right to be tried in Jackson County and concluded that no alternative measures were available to the court which would safeguard the defendant's rights to a fair trial by an impartial jury. On petition for certiorari review, the district court found no departure from the essential requirements of law and incorporated the operative portions of the orders into its opinion. For the reasons which follow, we approve the decision below.

We have reviewed and considered briefs from petitioner and from amici curiae, The Tallahassee Democrat, The Miami Herald Publishing Company, The Florida Press Association, The Florida Society of Newspaper Editors, and The Florida First Amendment Foundation. We address each of the three arguments presented by petitioner and amici (collectively, the press).

Chapter 119, Public Records, Florida Statutes (1985), establishes a state policy that government records, with specific exceptions, should be open at all times to the public. Section 119.011(3)(b) provides an exception whereby "criminal investigative information" developed for the prosecution of criminal defendants will not be accessible to the public until such time as the information is given, or required by law or agency rule to be given, to the accused. The pretrial discovery information at issue falls into this latter category of public records, which is available to the press and the public. In Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979), we held that the judiciary should not create public policy exemptions beyond those specified by the legislature. Accord City of North Miami v. Miami Herald Publishing Co., 468 So.2d 218 (Fla.1985); Rose v. D'Alessandro, 380 So.2d 419 (Fla.1980). Based on this case law and chapter 119, the press takes an absolutist position. First, it argues, the defendants here have no standing to request that the public records at issue be temporarily sealed. The notion that a defendant has no standing to assert a constitutional right to a fair trial through a motion to control prejudicial pretrial publicity is meritless. Second, the press argues, the trial court has written a new exception into chapter 119 which, in the press's view, is beyond the authority of the judicial branch. We disagree for two reasons. First, we do not regard the trial court's action in temporarily denying public access to pretrial discovery material until a jury could be selected and sequestered as creating an "exception" to chapter 119. In section 119.07(4) the legislature recognized that there would be occasions where court files containing public records would nevertheless be closed to the public by order of the court.

(4) Nothing in this section shall be construed to exempt from subsection (1) a public record which was made a part of a court file and which is not specifically closed by order of court except as provided in paragraphs (e), (f), (g), (m), (o), and (r) of subsection (3). (Emphasis supplied.)

The legislature has created the rule and the exceptions, including the court ordered exception. Our refusal in Wait, City of North Miami, and Rose to create as a matter of public policy the particular exceptions at issue does not mean that there may not be instances where orderly court procedures or a respect for constitutional rights require that court files be closed. Second, under the separation of powers doctrine, it is the responsibility of the judicial branch to ensure that parties receive a fair trial. In the case of a criminal defendant, the right to a fair trial includes the right to an impartial jury in the county where the crime was allegedly committed. The United States Supreme Court has characterized the right to a fair trial as the most fundamental of all freedoms and one which must be preserved at all costs. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Moreover,

[t]o safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell, [384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) ] supra. And because of the Constitution's pervasive concern for these due process rights, a trial judge may surely take protective measures even when they are not strictly and inescapably necessary.

Gannett Co. v. DePasquale, 443 U.S. 368, 378, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979). Accord Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378, 380 (Fla.1987) ("where a defendant's right to a fair trial conflicts with the public's right of access, it is the right of access which must yield"); Bundy v. State, 455 So.2d 330, 338 (Fla.1984) (a balancing test between the right of public access and a defendant's right to a fair trial must be applied so as to recognize the weightier considerations of the defendant). If, as the press urges, chapter 119 was read and applied so as to violate the constitutional separation of powers doctrine or the right to a fair trial, we would be obliged to declare the statute unconstitutional. Instead, we hold that when correctly interpreted and applied there is no conflict between the statute and the constitutional authority of the judicial branch to take such measures as are necessary to obtain orderly proceedings and a fair trial.

The trial court based its orders temporarily closing the pretrial discovery materials to the public on Florida Rule of Criminal Procedure 3.220(h), which authorizes protective orders restricting or deferring disclosures for cause. In concluding that there was cause, the trial court determined that there had been prior prejudicial publicity, that public disclosure of the discovery material would further aggravate the prejudicial publicity, and that the only measure available to the court until a jury could be selected and sequestered was to cut off the prejudicial publicity at its source before the discovery information became known to the press and public. In short, in determining cause, the court considered the factors contained in the three-prong test of Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla.1982). The district court here held that a showing of cause was sufficient and it was not necessary to formally apply the three-prong test. The press argues that constitutional rights of a free press were involved and that a showing of cause was insufficient to abridge those rights. We agree only in part with this argument. In Burk, relying on Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), we explicitly rejected the proposition that the press or public had a first amendment right of access to discovery procedures and the information...