MED. GEN. CON., INC. v. CHIEF JUDGE OF THIR. JUD. CIRCUIT

• Citation: 840 So.2d 1008
• Decision Date: 13 February 2003
• Docket Number: No. SC01-1398., No. SC01-1396
• Parties: MEDIA GENERAL CONVERGENCE, INC., et al., Petitioners, v. CHIEF JUDGE OF the THIRTEENTH JUDICIAL CIRCUIT, Respondent. Charles J. Crist, Jr., et al., Petitioners, v. Chief Judge of the Thirteenth Judicial Circuit, Respondent.
• Court: United States State Supreme Court of Florida

840 So.2d 1008

MEDIA GENERAL CONVERGENCE, INC., et al., Petitioners, v. CHIEF JUDGE OF the THIRTEENTH JUDICIAL CIRCUIT, Respondent.

Charles J. Crist, Jr., et al., Petitioners, v. Chief Judge of the Thirteenth Judicial Circuit, Respondent.

Nos. SC01-1396, SC01-1398.

Supreme Court of Florida.

February 13, 2003.

Gregg D. Thomas, Carol Jean LoCicero and James J. McGuire of Holland & Knight LLP, Tampa, FL; Thomas E. Warner, Solicitor General, and T. Kent Wetherell, II, Richard A. Hixson, and Matthew J. Conigliaro, Deputy Solicitors General, Tallahassee, FL; and Patricia R. Gleason, General Counsel, Office of the Attorney General, Tallahassee, FL, for Petitioners.

C. Steven Yerrid and Richard C. Alvarez of the Yerrid Law Firm, Special Counsel to the Office of the Chief Judge, Tampa, FL, for Respondent.

W. Robert Vezina, III, Mary Piccard Vance, and Frederick J. Springer of Vezina, Lawrence & Piscitelli, P.A., Tallahassee, FL; and W. Dexter Douglass and Thomas P. Crapps of the Douglass Law Firm, P.A., Tallahassee, FL, for the Florida Conference of Circuit Court Judges, Amicus Curiae.

PER CURIAM.

We have for review a decision of the Second District Court of Appeal, which certified a question to be of great public importance. See Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Judicial Circuit, 794 So.2d 631, 636 (Fla. 2d DCA 2001)

.¹ We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because the Second District's certified question is broader than the actual dispute in this case, we rephrase and divide the question to address the documents that were the subject of the dispute in this case:

I. WHETHER DOCUMENTS RECEIVED OR MADE BY THE CHIEF JUDGE REGARDING COMPLAINTS OF SEXUAL HARASSMENT OR SEXUALLY INAPPROPRIATE BEHAVIOR BY A JUDGE CONSTITUTE PUBLIC RECORDS?

II. IF THE DOCUMENTS DO CONSTITUTE PUBLIC RECORDS, ARE THE DOCUMENTS OTHERWISE EXEMPT FROM DISCLOSURE AFTER THE JUDICIAL QUALIFICATIONS COMMISSION DETERMINES THAT PROBABLE CAUSE EXISTS?

For the reasons that follow, we answer the first rephrased certified question in the affirmative, and the second rephrased certified question in the negative. Accordingly, for the reasons stated in this opinion, we quash the Second District's decision and remand for further proceedings consistent with this opinion.

I.

Petitioners Media General Convergence, Inc., and Media General Operations, Inc., were, respectively, the owner of television station NewsChannel 8/WFLA-TV ("WFLA") and the publisher of The Tampa Tribune newspaper ("the Tribune").² This review proceeding involves requests WFLA and the Tribune made to Judge F. Dennis Alvarez, Chief Judge of the Thirteenth Judicial Circuit,³ for access to records involving "information about complaints of sexual harassment and/or sexually inappropriate comments or behavior made against Hillsborough Circuit Judge Edward Ward." These records requests will be referred to as the "Judge Ward records."

Although Chief Judge Alvarez did not produce any records to the petitioners and no records were produced under seal to the Second District, we are able to determine additional material facts based on the appendices filed by both parties before the Second District and made a part of the record in this case. These appendices include records supplied by the Judicial Qualifications Commission ("JQC") to the petitioners.

The records released by the JQC indicate that Chief Judge Alvarez learned of complaints regarding Judge Ward's behavior toward other circuit court judges and judicial assistants, and received information regarding this behavior. The records received or generated by Chief Judge Alvarez include affidavits executed by two judicial assistants regarding behavior by Judge Ward that the judicial assistants considered inappropriate;⁴ e-mails between Judge Ward and one of the judicial assistants, as well as e-mails between Judge Ward and another circuit judge; and memoranda by Chief Judge Alvarez's employee memorializing Chief Judge Alvarez's discussions during a meeting with Judge Ward involving the complaints against him and the follow-up meeting with the judicial assistant and the judge for whom she worked.

Some time after the petitioners' initial request for the Judge Ward records, the JQC found probable cause to believe that Judge Ward had sent sexually explicit emails and made inappropriate overtures to two female Hillsborough County Circuit Judges and two female judicial assistants. The JQC filed formal charges against Judge Ward on March 1, 2000, and on that same day, the Tribune renewed its request in writing to Chief Judge Alvarez for "any and all documents and materials relating to complaints and/or allegations of inappropriate conduct" concerning Judge Ward. However, the Tribune did not indicate in its request that the JQC had found probable cause in the Judge Ward case. On March 2, 2000, WFLA requested the Judge Ward records telephonically.

Responding to the requests by separate letters dated March 6, 2000, Chief Judge Alvarez stated that "any records in my custody pertaining to your request have already been furnished to the [JQC] pursuant to its request." Furthermore, Chief Justice Alvarez explained: "It is my understanding that such records will only become public upon their admission into evidence at a subsequent JQC proceeding. It is also my understanding that until such public proceeding, JQC investigatory records remain confidential."

On March 8, 2000, WFLA and the Tribune again wrote to Chief Judge Alvarez, requesting access to

any records, including e-mail correspondence, you, your staff, the Court Administrator, his staff, or Court Communications & Technology Services personnel obtained, received or reviewed and that contain or refer to the text of any e-mail messages among Judge Edward Ward and any of the [people who made complaints regarding Judge Ward's behavior]. Access is also requested to any records, including e-mail messages, between you (or your staff) and any other Hillsborough County Circuit Court Judge, County Court Judge, or court staff member concerning Judge Ward.⁵

Furthermore, WFLA and the Tribune requested that Chief Judge Alvarez retrieve or make copies of the records for review to the extent that he had transferred the records to the JQC.

On that same day, WFLA and the Tribune made a second request for access to the following documents:

any correspondence, electronic correspondence, documents or other records made or received by the Chief Judge's Office or the Court Administrator's Office concerning fraternization, romantic relationships or sexual contact between any Hillsborough County Circuit Court or County Court Judge, and any personnel assigned to any courthouse located in Hillsborough County, whether such personnel are employed by the state of Florida, Hillsborough County, the Hillsborough County Sheriff's Office, or some other private or governmental entity.

These records will be referred to as the "fraternization records." Chief Judge Alvarez denied the request for the fraternization records, explaining that "[t]o the extent that any judicial records you have requested exist, please be advised that such records would be confidential and exempt from public accessibility under Florida Rule of Judicial Administration 2.051(c)(3)(A)."⁶

After Judge Alvarez denied access to both sets of records, WFLA and the Tribune filed a petition for a writ of mandamus in the Second District, seeking an order compelling Chief Judge Alvarez to disclose the requested records.⁷ The Second District denied the petition but certified a question of great public importance. See Media Gen. Convergence, 794 So.2d at 636

. The Second District majority first explained that whether the documents at issue were public depended on "whether they are `judicial records' within the meaning of Florida Rule of Judicial Procedure 2.051." Id. at 633. The Second District concluded as follows:

By and large, none of the documents requested by the petitioners is a "judicial record" as defined in the rule. The reason has to do with the purely administrative nature of the office of the chief judge. The Florida Constitution, article V, section 2(d), states that the chief judge "shall be responsible for the administrative supervision of the circuit courts and county courts in his circuit." Florida Rule of Judicial Administration 2.050 details the administrative duties of a circuit chief judge. Neither the constitution nor the rule imbues him with authority to supervise the social, romantic or sexual behavior of other judges or, for that matter, of anyone else. Indeed, a chief judge, as such, has no official role in investigating judicial misconduct of any kind. That duty is vested in the Judicial Qualifications Commission, and the chief judge plays no part in its investigative or adjudicatory process. Art. V, § 12, Fla. Const.; Fla. Jud. Qual.

Comm'n R. For the most part, then, the documents requested of Judge Alvarez could not have been made or received by him in his capacity as chief judge pursuant to court rule, law or ordinance, or in connection with the transaction of official business. Simply put, they are not judicial records subject to compulsory public access. Fla. R. Jud. Admin. 2.051(b).

Id. Furthermore, the Second District concluded that to the extent the requested documents constituted public records, the documents would be exempt from disclosure under rule 2.051(c)(8), which exempts from public disclosure records "deemed to be confidential by court rule." Id. at 635.

In a dissenting opinion, Acting Chief Judge Fulmer concluded that the records at issue constituted judicial records subject to public disclosure. See id. at 636 (Fulmer, A.C.J., dissenting). Judge Fulmer explained that the majority construed the public records provisions too narrowly, and that "[t]he administrative responsibilities of a chief judge are not so rigid as to enable this court to predetermine exactly what...