In re Amendments to Rules of Jud. Admin., SC05-173.

• Citation: 915 So.2d 157
• Decision Date: 03 November 2005
• Docket Number: No. SC05-173.,SC05-173.
• Parties: In re AMENDMENTS TO THE RULES OF JUDICIAL ADMINISTRATION (TWO-YEAR CYCLE).
• Court: United States State Supreme Court of Florida

915 So.2d 157

In re AMENDMENTS TO THE RULES OF JUDICIAL ADMINISTRATION (TWO-YEAR CYCLE).

No. SC05-173.

Supreme Court of Florida.

November 3, 2005.

Honorable Winifred J. Sharp, Chair, Florida Rules of Judicial Administration Committee, Daytona Beach, FL, Honorable Claudia Rickert Isom, Past Chair, Plant City, FL, John F. Harkness, Executive Director, J. Craig Shaw, Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.

Honorable Scott M. Bernstein, Circuit Judge, Eleventh Judicial Circuit, Miami, FL, for Proponent.

Gregg D. Thomas and Carol Jean Locicero of Holland and Knight, LLP, Tampa, FL, on behalf of Media General Operations, Inc.; Jonathan D. Kaney, Jr., General Counsel, First Amendment Foundation, Tallahassee, FL, John R. Hargrove and Dana J. McElroy of Gordon, Hargrove and James, P.A., on behalf of Sunbeam Television Corporation, and Karen Williams Kammer of Mitrani, Rynor and Adamsky, P.A., on behalf of Post-Newsweek Stations Florida, Inc., for Opponent.

PER CURIAM.

We have for consideration the biennial report of proposed rule amendments filed by The Florida Bar's Rules of Judicial Administration Committee (Rules Committee), in accordance with Florida Rule of Judicial Administration 2.130(c)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Rules Committee proposes amendments to Florida Rules of Judicial Administration 2.050, Trial Court Administration; 2.051, Public Access to Judicial Branch Records; 2.060, Attorneys; 2.085, Time Standards for Trial and Appellate Courts; 2.130, Procedure for Amending Rules; and 2.170, Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings. In accordance with Florida Rule of Judicial Administration 2.130(c)(2), the Rules Committee submitted its proposals to the Board of Governors of The Florida Bar and published the proposals for comment. The Board of Governors unanimously approved the proposed changes. The Rules Committee received comments concerning the proposed amendments to rules 2.051, 2.060, and 2.170, but did not make any changes to its proposals in response to the comments received. The Court also published the proposed amendments for comment. The Court received comments addressing the proposed amendments to rules 2.051 and 2.170, which are basically the same as the comments received by the Rules Committee.

At the request of the Court, the Appellate Court Rules Committee, the Civil Procedure Rules Committee, the Criminal Procedure Rules Committee, the Family Law Rules Committee, the Juvenile Court Rules Committee, the Probate Rules Committee, the Small Claims Rules Committee, and the Traffic Court Rules Committee filed reports addressing amendments to Rule of Judicial Administration 2.071, Use of Communication Equipment, that were proposed by the Rules of Judicial Administration Committee in its 2003 regular-cycle rules submission. On its own motion, the Court considered the proposed amendments to rule 2.071 together with the 2005 regular-cycle proposals.

AMENDMENTS

After reviewing the Rules Committee's 2005 proposed amendments, considering the comments filed concerning those proposals, and hearing oral argument, we adopt all the 2005 proposals, except the proposed amendments to rule 2.170. We also adopt the 2003 proposed amendment to rule 2.071(c), Use of Communication Equipment; Use Only by Requesting Party. However, after considering the comments filed by the various rules committees, we again decline to adopt the proposed amendment to subdivision (d), Use of Communication Equipment; Testimony. Each of the substantive amendments is discussed in more detail below.

We amend subdivision (e) of rule 2.050, Local Rules and Administrative Orders, as proposed by the Rules Committee, to delete the requirement that circuit court clerks furnish copies of administrative orders to the executive director of The Florida Bar.

We also amend rule 2.051, Public Access to Judicial Branch Records, as proposed by the Rules Committee, with the addition of a court commentary in response to a comment filed with the Court by Media General Operations.¹ The amendments address concerns identified by the Court in Media General Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 840 So.2d 1008 (Fla.2003) (noting that rule 2.051 does not provide sufficient guidance for resolving disputes concerning access to judicial records and does not set forth a specific procedure for the appellate court to engage in an in-camera inspection). As amended, subdivision (d)(1) (Review of Denial of Access Request) and subdivision (e)(2) (Procedure) of the rule require (1) the judge denying access to judicial records to file a sealed copy of the requested records when ordered to do so by the appellate court, and (2) the custodian of the records to state in writing the basis for the denial. These requirements will provide the reviewing court with express reasons for the denial of a public records request and will allow the court to conduct an in-camera inspection of the documents. At the suggestion of Media General Operations,² a petitioner in Media General Convergence, we add a court commentary recognizing appellate courts' inherent authority to appoint a special magistrate to serve as commissioner for the appellate court to make findings of fact and oversee discovery in proceedings under this rule. Cf. State ex rel. Davis v. City of Avon Park, 117 Fla. 565, 158 So. 159 (1934) (recognizing appellate courts' inherent authority to do all things reasonably necessary for administration of justice within the scope of courts' jurisdiction, including the appointment of a commissioner to make findings of fact); Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998) (relinquishing jurisdiction to circuit court for appointment of a special master to serve as commissioner for court to make findings of fact).

The amendment to rule 2.060(b), retitled Persons Employed by the Court Not to Practice, clarifies that the prohibition against engaging in the practice of law applies to all full-time court employees. The amendment also adds court employees acting in their official capacity as individuals to whom legal representation may be provided. Consistent with the provisions of Rule Regulating the Florida Bar 4-1.12 the amendment to rule 2.060(b) further clarifies that the prohibition against an attorney formerly employed by a court representing anyone in connection with a matter in which the attorney participated personally and substantially while employed by the court may be waived after full disclosure and the consent of all parties.

New rule 2.085(d), Related Cases, is adopted in response to the Family Court Steering Committee's³ year 2000 recommendations for implementing unified family courts in Florida. See In re Report of the Family Court Steering Committee, 794 So.2d 518 (Fla.2001). The new rule implements the Steering Committee's recommendation that the Court adopt a rule of judicial administration that would "require judges who are assigned to different cases involving the same family to confer, and to coordinate pending litigation to maximize judicial efforts, avoid inconsistent court orders, and avoid multiple court appearances by the parties on the same issues." Id. at 526. Consistent with this recommendation, the new subdivision creates a procedure for the filing of notice of related cases by a petitioner in a family case if related cases are known or reasonably ascertainable.

In order to ensure that the Legislature is included in the rulemaking process, subdivisions (a), (c)(2), (c)(5), (e), and (f) of rule 2.130, Procedure for Amending Rules, are amended to add the Speaker of the Florida House of Representatives, the President of the Senate, and the chairs of the House and Senate committees as designated by the Speaker and the President as individuals required to receive notices of hearings, copies of rules changes, committee reports, revised proposed rules changes, and notices of oral argument on proposed rule changes. The Court, on its own motion, has added language to subdivisions (a), (c)(5), (e), and (f) recognizing that the Clerk of the Supreme Court may provide notice required under those subdivisions electronically.

The changes to rule 2.130(c), Schedule for Rule Proposals, were recommended by the Rules Committee because it determined that the current two-year cycle for rules changes, which was adopted in 2000,⁴ has proved impractical and has "overwhelmed" the volunteer rules committees by "overly compacting" the regular cycle rule-making process. The major amendment is to subdivision (c)(1), which changes the regular cycle for proposed rule amendments from a staggered two-year cycle to a staggered three-year cycle. The new cycle commences in 2006, with the various rules committees divided into three groups for reporting purposes.

On our own motion, we delete the references to the Workers' Compensation Rules Committee in subdivisions (b)(3) and (c)(1) of rule 2.130. The repeal of the Rules of Workers' Compensation Procedure eliminates the need for that committee. See Amendments to the Fla. Rules of Workers' Compensation Procedure., 891 So.2d 474 (Fla.2004).

We decline to adopt proposed new rule 2.170(b), Photographing Jurors Faces,⁵ which the media⁶ and the First Amendment Foundation maintain is inconsistent with decisions of this Court and the Fourth District Court of Appeal.⁷ We also decline to adopt proposed new subdivision (a)(iii) of rule 2.170, which would expressly recognize the presiding judge's authority to "protect rights of privacy and prevent disclosure of privileged and confidential matters" in connection with electronic media and still photography coverage of judicial proceedings. We further decline to adopt proposed new rule 2.170(c)(5), which would provide that the "court's security cameras shall be used for security purposes only."

Finally, after...