Palm Beach Newspapers, Inc. v. Limbaugh, 3D05-1799.
| Citation | 967 So.2d 219 |
| Decision Date | 30 December 2005 |
| Docket Number | No. 3D05-1799.,3D05-1799. |
| Parties | PALM BEACH NEWSPAPERS, INC., d/b/a The Palm Beach Post, Appellant, v. Rush LIMBAUGH and Marta Miranda, Appellees. |
| Court | Court of Appeal of Florida (US) |
Reeder & Reeder and L. Martin Reeder, for appellant.
Caruana and Lorenzen and Dirk Lorenzen; Richman Greer Weil Brumbaugh Mirabito & Christensen and Bruce A. Christensen, for appellees.
Before COPE, SUAREZ and CORTI% NAS, JJ.
ON MOTION FOR REHEARING AND CERTIFICATION
COPE, J. .
Two questions are presented by this case. First, does a marital settlement agreement become a public record when the trial judge reviews it, initials it, and makes findings about it during a dissolution of marriage proceeding, even though it is handed back to the parties and never filed of record? The answer to that question is yes, unless the husband and wife can demonstrate the existence of an applicable exemption to the public records constitutional provision. See Art. I, § 24(a), Fla. Const.
Second, in the situation just described, what is the correct procedure for the press or a member of the public to obtain access to the marital settlement agreement? The prevailing view is that such a document may be requested by filing a motion in the matrimonial case, and requesting leave to intervene for that purpose. We should grant rehearing and certification.
Rush Limbaugh, the husband, and Marta Miranda, the wife, decided to dissolve their marriage. With the advice of their respective counsel, they signed a twenty-two-page marital settlement agreement.
The husband filed a petition for dissolution of marriage in the Circuit Court for Monroe County in Key West on December 21, 2004. The petition stated that there were no minor children of the marriage and that the parties had agreed, through counsel, to a division of their property. The wife, Marta Miranda, simultaneously filed her answer, admitted the allegations of the petition and asked only that her family name be restored.
The same day the trial court held a hearing on the petition, during which it read the marital settlement agreement and initialed each page of the document. It then returned the marital settlement agreement to the parties. The final judgment of dissolution of marriage incorporated the agreement by reference and noted that:
In the interest of privacy for the parties, the Court is not requiring the Marital Settlement Agreement to be filed in the public court file. The Court has placed its mark on each page so that the authenticity of the Agreement, including each page thereof, can be determined in any subsequent proceeding that may be necessary.
The final judgment was recorded on December 23, 2004. The court granted the parties' ore tenus motion to seal the file.
The dissolution of marriage was reported in the press in January 2005. The stories noted that the terms of the settlement were not disclosed.
On March 15, Palm Beach Newspapers, Inc. ("The Palm Beach Post" or "The Post"), filed a motion to unseal the court file. This motion was filed in the dissolution of marriage case file. The former husband and former wife informed the court that they had no objection, and the court file was unsealed on March 18.
When The Post discovered that the marital settlement agreement was not in the court file, it filed a "Motion for Order Requiring Marital Settlement Agreement to be Filed with the Clerk and Recorded in the Official Records." The Post asked the court to direct the former husband and former wife to file the marital settlement agreement in the public court file.
The trial court conducted a hearing and granted The Post's ore tenus motion to intervene for purposes of the motion. On the merits, the court expressed doubt about whether it had jurisdiction to order the requested relief. The court then said, Accordingly, the trial court denied relief.
The Post filed in this court a petition for review of the trial court's order. See Fla. R.App. P. 9.100(d). This court denied the petition by unpublished order.
The Post filed a motion for rehearing, rehearing en banc, and certification of a question of great public importance. In the motion The Post requested issuance of a written opinion. The majority has denied the motion on the authority of Davis v. Cincinnati Enquirer, 164 Ohio App.3d 36, 840 N.E.2d 1150 (2005).
I believe the motion for rehearing is well taken and we should grant it.
When The Post's petition for review was originally submitted to our panel, I voted to deny it because I agreed with the trial judge's conclusion that the marital settlement agreement was not a public record. It seemed to me that so long as the agreement had not been filed by the parties in the court file, it followed that the agreement was not a public document. See Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987). On revisiting the issue in light of the motion for rehearing, however, I am now convinced that my earlier conclusion was in error.
Controlling here is the plain language of Florida's constitutional right of access to public records. Under Article I, Section 24, a public record is one which is "made or received in connection with the official business of any public . . . officer . . . of the state," unless the record has been exempted from public disclosure by statute or another constitutional provision. Id. (emphasis added); Art. I, § 24(a), Fla. Const. This constitutional provision specifically applies to the judicial branch, id., and is self-executing. Id. at Art. I § 24(c).1 Turning now to the facts of this case, there was a hearing in the trial court on the petition for dissolution of marriage. At that time, the parties handed the trial judge the marital settlement agreement. The judge reviewed it and "received testimony that the Marital Settlement Agreement was negotiated between the parties, through counsel, and was entered into freely, voluntarily and without duress." The court placed a mark on each page and returned the document to the parties.
The conclusion is inescapable that the marital settlement agreement is a judicial record. The trial judge received it, reviewed it, initialed it, and made findings about it in the hearing on the petition for dissolution of marriage. The agreement was received by the judge in connection with the official business of the court, and is therefore a judicial record. See id. Art. I, § 24(a), Fla. Const.; see also Media Gen. Convergence, Inc. v. Chief Judge, 840 So.2d 1008, 1016 (Fla.2003) (); cf. State v. City of Clearwater, 863 So.2d 149, 155 (Fla.2003) (); Smithwick v. Television 12, 730 So.2d 795, 798 (Fla. 1st DCA 1999) (); Tober v. Sanchez, 417 So.2d 1053, 1054-55 (Fla. 3d DCA 1982) ().
The former husband and former wife argue that the true test is whether the parties themselves filed the marital settlement agreement in the court file. They maintain that the decision in Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987), is dispositive. While I originally accepted that argument, I am now convinced that Burk is inapplicable here.
In Burk, the press sought to attend pretrial discovery depositions in a criminal case. The press also wished to obtain copies of depositions which had not been transcribed or filed with the court. The press argued that depositions are compelled by judicial process and therefore depositions should be viewed as judicial proceedings. The Florida Supreme Court rejected that argument and held that discovery depositions would become public when filed in the court file. Id. at 384.
The important point for present purposes is the Burk court's reasoning. The Burk court explained that discovery depositions are not "judicial proceedings `for the simple reason that there is no judge present and no rulings nor adjudications of any sort are made by any judicial authority.'" Id. (emphasis added). In the present case, by contrast, a judge was present and made adjudications. The Burk decision does not apply here.
As the marital settlement agreement is a judicial record, the next question is whether it is exempt from disclosure. See Art. I, § 24(a), Fla. Const.; Media Gen. Convergence, 840 So.2d at 1016-20.
The trial court did not reach the question of a possible exemption from public disclosure because the trial court had concluded that the unfiled marital settlement agreement was not a judicial record. The correct procedure, therefore, is to remand and allow the former husband and former wife the opportunity to argue that the marital settlement agreement should be exempt from public disclosure under Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113, 118 (Fla.1988) (), and Florida Rule of Judicial...
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