Miami Herald Pub. Co. v. State, 77-2530

• Decision Date: 25 October 1978
• Docket Number: No. 77-2530,77-2530
• Citation: 363 So.2d 603
• Parties: 4 Media L. Rep. 1681 MIAMI HERALD PUBLISHING COMPANY, a division of Knight-Ridder Newspapers, Inc., d/b/a The Miami Herald and Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post, Appellants, v. STATE of Florida and Peter Joseph Salerno, Appellees.
• Court: Florida District Court of Appeals

Page 603

363 So.2d 603

4 Media L. Rep. 1681

MIAMI HERALD PUBLISHING COMPANY, a division of Knight-Ridder Newspapers, Inc., d/b/a The Miami Herald and Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post, Appellants, v. STATE of Florida and Peter Joseph Salerno, Appellees.

No. 77-2530.

District Court of Appeal of Florida, Fourth District.

Oct. 25, 1978.

Talbot D'Alemberte and Donald M. Middlebrooks of Steel, Hector & Davis, Miami, for appellant Miami Herald Publishing Co.

Florence B. Snyder, Boca Raton, for appellant Palm Beach Newspapers, Inc.

James D. Spaniolo, Miami, Staff Counsel for appellant Miami Herald Publishing Co.

Robert L. Shevin, Atty. Gen., Tallahassee, James D. Whisenand, Deputy Atty. Gen., and Douglas C. Kearney, Asst. Atty. Gen., Tallahassee, for appellee State of Florida.

Philip G. Butler, Jr. of Foley, Colton & Butler, P.A., West Palm Beach, for appellee Peter Joseph Salerno.

LETTS, Judge.

Two major newspaper chains here appeal a trial Judge's decision which excluded the media from a sentencing hearing and thereafter sealed the record thereof.

We affirm but also remand.

In the case at bar Salerno, a jewel thief internationally known to the authorities, was convicted of burglary and grand larceny charges. Some eleven months later at the request of defense counsel and with the acquiescence of the State, the trial judge, without warning, cleared the courtroom and conducted a two hour closed sentencing hearing. The press was only allowed to return to hear the sentence pronounced 15 years probation. A court reporter was in attendance at the hearing and a complete transcript was prepared and sealed. Subsequently, the appellant newspapers filed a motion to intervene and a motion to vacate the order sealing the transcript. The motion to intervene was granted, the trial court recognizing the newspapers' standing to question the orders in issue. The motion to vacate was denied after a hearing in a written order which stated in part:

The Court finds that in the present case there are substantial compelling and cogent reasons existing that require that the record of the sentencing proceedings be sealed and remained sealed, at least for the time being. However, as discussed in News-Press Pub. Company, Inc. v. State, (345 So.2d 865) Supra, at page 867, a specific and thorough statement of these reasons would subvert the Court's purpose in sealing the sentencing proceedings. For this reason the Court is unable to state with specificity the nature of the existing reasons that require nondisclosure of the sentencing proceedings in the present case.

During the pendency of the present case the Court has received information from counsel for the State of Florida and the Defendant. In addition the Court has received information from other individuals with the full knowledge and acquiescence of counsel for the State of Florida and the Defendant. Based on this information, which the Court is not at liberty to disclose at the present time, the Court feels that the personal safety of one or more individuals whose identity or identities are known to the Court but cannot be disclosed, would be severely jeopardized if the contents of the record of the sentencing proceedings were revealed at the present time. For this reason, it is hereby,

ORDERED AND ADJUDGED: That the records of the sentencing proceedings in the present case should be sealed and remained sealed until further order of the Court. Further, counsel for the State of Florida and the Defendant are hereby ordered to advise the Court of any pertinent developments that would remove the present reasons that exist for sealing the records in order that the Court may properly disclose the contents of the record at some appropriate future time. Further, the Court advises all parties that the sentence proceedings have been transcribed and are currently sealed and in the custody of the Court. The transcript is available for an "in camera" inspection by an Appellate Court to permit review of the present Order upon proper order from the Appellant Court.

This appeal followed.

According to the appellants, this judicial action "touched off a storm of controversy in Palm Beach County" and "as a direct result of the court's order, the climate of public opinion surrounding this case reflects distrust for the integrity of the judicial process." From the record provided to us, the only evidence of such a happening consists of grumbling on the part of two police officers, one of whom added that he trusted the judge to be fair and honest. Thus, any outrage was not expressed by members of the public as such, but by the media. Nevertheless we recognize that the opinions of the press are, in truth, a form of public expression because the media acts as the public's primary agent. This agency was succinctly expressed by Judge Hendry in Miami Herald Publishing Company v. Collazo, 329 So.2d 333 (Fla. 3d DCA 1976):

An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press, therefore, acts as an agent of the public at large. It is one of the primary means by which we receive that free flow of information and ideas essential to intelligent self-government. The underlying right to know is the right of the public generally. See Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); and Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).

We first hold that the public's right to be informed continues beyond the trial itself and also applies to sentencing proceedings. We find no supporting case on this precise point, but confidently base our conclusion on the premise that "what transpires in the court room is public property." Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). It is true that, within the parameters of his discretion, a trial judge can pass whatever sentence he chooses, without the need to explain it, either to the press, or to us. However, if the pronouncement is based on any tangible proceeding or document presented in the courtroom, it is within the public domain unless covered by some designated exception.

Much is argued about whether these proceedings should have been opened or closed, yet the newspapers contend that that single issue is not really dispositive and state in their reply brief:

But appellants have not argued, as the State seems to suggest, that courts are without power to issue closure orders in all cases. The appellants do contend, however, that constitutional values are involved and such orders cannot be entered absent a showing that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice, (2) that no less restrictive alternative measures are available, and (3) that closure will in fact achieve the Court's purpose.

We agree with the newspapers in all three respects.

In the case at bar, the trial court quite properly cited News-Press Pub. Co., Inc. v. State, 345 So.2d 865 (Fla. 2d DCA 1977) as a reference for its authority to seal the transcript. As was said in the News-Press case:

By virtue of its inherent power to control the conduct of its own proceedings, there is little doubt that under certain circumstances the courts may exclude the public and the press from its proceedings, but such authority must be cautiously exercised. State ex rel. Gore Newspapers Company v. Tyson, 313 So.2d 777 (Fla. 4th DCA 1975). As applied to the instant case, a showing that the opening of the depositions might endanger a person's life could well justify the order entered below. On the other hand, an understandable desire to protect the victim's family from exposure of the details of what was apparently a heinous crime would not warrant an order which would preclude public access to official court records in the form of these depositions. The press must be counted on to report such facts in a responsible manner. The desirability of...