Palm Beach Newspapers, Inc. v. Burk

• Decision Date: 11 June 1985
• Docket Number: No. 83-422,83-422
• Citation: 471 So.2d 571,10 Fla. L. Weekly 1435
• Parties: 10 Fla. L. Weekly 1435, 12 Media L. Rep. 1225 PALM BEACH NEWSPAPERS, INC., and Miami Herald Publishing Company, et al., Petitioners, v. The Honorable Richard Bryan BURK, Linda Aurilio and State of Florida, Respondents.
• Court: Florida District Court of Appeals

Page 571

471 So.2d 571

10 Fla. L. Weekly 1435, 12 Media L. Rep. 1225

PALM BEACH NEWSPAPERS, INC., and Miami Herald Publishing Company, et al., Petitioners, v. The Honorable Richard Bryan BURK, Linda Aurilio and State of Florida, Respondents.

No. 83-422.

District Court of Appeal of Florida Fourth District.

June 11, 1985.

Talbot D'Alemberte and L. Martin Reeder, Jr., of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for petitioner/Palm Beach Newspapers, Inc.

Richard J. Ovelmen, Miami, for petitioner/Miami Herald Pub. Co.

Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondent/Richard Bryan Burk.

Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for respondent/Linda Aurilio.

UPON PETITION FOR REVIEW EN BANC

Palm Beach Newspapers, joined by other newspapers (all referred to as the Press), are here under the provisions of Florida Rule of Appellate Procedure 9.100.

There was pending an attempted murder case in West Palm Beach entitled State of Florida v. Linda J. Aurilio, Case No. 82-5858-CF-T. Being interested, the Press sought access, as hereinafter particularized, to pretrial discovery depositions in this criminal case. The effort was unsuccessful. The respondent trial judge basically ruled that such depositions are not judicial proceedings, and that such depositions are not court records until such time as they are transcribed and filed with the Clerk. The Press, being thereby disaccommodated, filed this proceeding.

The questions to be resolved, as we understand them, are (1) Is the Press entitled to notice and an opportunity to attend pretrial discovery depositions in a criminal case? and (2) Is the Press entitled to access to pretrial discovery depositions taken but not filed with the Clerk? ¹

Upon consideration of the excellent advice of counsel, we answer the questions in the negative. We approve and affirm the order under review.

To more exactly reflect the position and demands of the Press, we quote from the Press' Petition:

Respondent's ruling that the petitioner may not attend depositions in this case should be reversed and the case should be remanded to determine whether closure of any particular deposition is appropriate under the three-part test of Lewis. The trial court must consider the facts which relate to a particular deposition before ordering that particular deposition closed.

This Court also should direct the trial court to require the release or filing of any existing deposition transcripts and any deposition transcripts ordered in the future by the parties or the petitioner unless a motion to seal the transcripts is filed, and evidence produced at a hearing shows a compelling need to seal.

Finally, the lower court should be directed to require the filing of all original notices of taking depositions in accordance with the rules of civil and criminal procedure. If a party believes that public or press access to any future depositions will infringe on the fair trial rights of the accused or will unreasonably endanger the defendant or a witness or any other person, that party should file an appropriate motion seeking to restrict access and notice the media of the hearing thereon. At the hearing, the movant must be required to present evidence sufficient to overcome his burden of meeting each prong of the three-part test established in Miami Herald v. Lewis [426 So.2d 1 (Fla.1982) ] and Miami Herald v. State [363 So.2d 603 (Fla.App.1978) ].

The Press tells us that, "No Florida appellate court has addressed directly the issue here presented: whether depositions taken in the course of a criminal proceedings are pretrial judicial proceedings to which the right of access applies." We are then referred to a number of cases that, according to the Press, support their position by inference, deduction, or otherwise. Having reviewed such cases, we are not persuaded and see no gain to be accomplished by engaging in a disputation on a case by case basis. Perhaps the largest distinction to be found is that many of the cited cases deal with access to trial or proceedings actually conducted before the court (judge) in the courthouse while here the judge is not present at the taking of the depositions, which events may take place outside the courthouse. We found not a single case, statute or rule that we think precedentially commands the result contended for by the Press. ² The survey, though educational, did indeed reveal the success of the press generally in gaining access to proceedings theretofore thought private or subject to court discretion.

We support our decision that the Press has no constitutional right to access to pretrial depositions in a criminal case, as defined in the questions before us, by referring to the following cases:

GANNETT CO., INC. v. DePASQUALE

443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)

While this case is not on point in that it deals primarily with press access to a pretrial hearing (before the judge in court) on a motion to suppress allegedly involuntary confessions and physical evidence in a criminal case, we think portions of the concurring opinion of Chief Justice Burger are illuminating:

Even though the draftsmen of the Constitution could not anticipate the 20th-century pretrial proceedings to suppress evidence, pretrial proceedings were not wholly unknown in that day. Written interrogatories were used pretrial in 18th-century litigation, especially in admiralty cases. Thus, it is safe to assume that those lawyers who drafted the Sixth Amendment were not unaware that some testimony was likely to be recorded before trials took place. Yet, no one ever suggested that there was any "right" of the public to be present at such pretrial proceedings as were available in that time; until the trial it could not be known whether and to what extent the pretrial evidence would be offered or received.

Similarly, during the last 40 years in which the pretrial processes have been enormously expanded, it has never occurred to anyone, so far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants. A pretrial deposition does not become part of a "trial" until and unless the contents of the deposition are offered in evidence. Pretrial depositions are not uncommon to take the testimony of a witness, either for the defense or for the prosecution. In the entire pretrial period, there is no certainty that a trial will take place. Something in the neighborhood of 85 percent of all criminal charges are resolved by guilty pleas, frequently after pretrial depositions have been taken or motions to suppress evidence have been ruled upon.

For me, the essence of all of this is that by definition "pretrial proceedings" are exactly that.

Gannett, 443 U.S. at 396, 99 S.Ct. at 2914, 61 L.Ed.2d at 631.

TALLAHASSEE DEMOCRAT, INC. v. WILLIS

370 So.2d 867 (Fla. 1st DCA 1979)

This case deals with Press access to written depositions filed with the Clerk. It held, among other things, "In sum, we conclude that the rules of procedure contemplate that upon filing, unless otherwise ordered by the court, a deposition becomes a part of the 'court file' (Rule 1.400, Florida Rule of Civil Procedure). According to this view, in the absence of a court order sealing the deposition, or some provision of law requiring the same to remain confidential the Press may not be excluded from reading, copying and reporting the contents of a deposition." Tallahassee, 370 So.2d 870-871. We agree with this holding. See also Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367 (Fla. 5th DCA 1980). We note that the trigger device is the act of "filing." Thus, conversely, we hold that no right of access accrues until there is a "filing." As all know, our rules of procedure do not blanket mandate the filing of depositions and other discovery documents. See Fla.R.Civ.P. 1.310(f) 3, 1.340, and 1.350. Moreover, Florida Rule of Judicial Administration 2.075(a)(1) defines court records as "the contents of the court file, depositions filed with the clerk...." Thus, non-filed depositions are not court records available to the Press. Also, we know of no requirement for counsel to require transcription and to file a discovery deposition or statement when, for example, it was non-productive, hurtful to his cause, or where it will be of no use to him at trial.

Finally, we note with approval this statement and footnote because it partially capsulates a basis for our holding:

Petitioners argue with great insistence the applicability of the notice and hearing procedures set forth in State ex. rel. Miami Herald Publishing Co. v. McIntosh [340 So.2d 904 (Fla.1977) ], supra. However, we perceive a distinction between press rights of access to court hearings or trials, and access to portions of the court file or records which may or may not be subject to public and press inspection, i.e., specifically, depositions.4

Tallahassee, 370 So.2d at 871-72.

UNITED STATES v. GURNEY

558 F.2d 1202 (5th Cir.1977), rehearing denied 562 F.2d 1257 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978)

This was a criminal case, courthouse trial, which is a step closer than our case where the trial has yet to commence and where the proceedings were not conducted at the courthouse. In Gurney, the trial judge denied the Press access at trial to (1) the exhibits proferred but not yet admitted into evidence; (2) transcripts of bench conferences held in camera where exhibits and testimony were proffered; (3) written communication between the jury and judge; and (4) Gurney's grand jury testimony which had not been read to the jury. It also appears that the trial court failed to conduct a hearing on Press requests but merely entered oral orders denying access, which orders were subsequently confirmed in writing with reasons. These rulings and actions were affirmed...