Palm Beach Newspapers, Inc. v. Burk, 67352

CourtUnited States State Supreme Court of Florida
Citation12 Fla. L. Weekly 103,504 So.2d 378
Parties12 Fla. L. Weekly 103, 13 Media L. Rep. 2087 PALM BEACH NEWSPAPERS, INC.; The Miami Herald Publishing Company; and News and Sun Sentinel Company, Petitioners, v. The Honorable Richard Bryan BURK, Linda Aurilio and State of Florida, Respondents.
Docket NumberNo. 67352,67352
Decision Date19 February 1987

Once a transcribed deposition is filed with court pursuant to criminal rule, it is open to public inspection. West's F.S.A. RCrP Rule 1.400.

Donald M. Middlebrooks, L. Martin Reeder, Jr., Thomas R. Julin and Norman Davis of Steel, Hector & Davis, Parker D. Thomson, Sanford L. Bohrer, Jerold I. Budney and Gene A. Turk, Jr. of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Richard J. Ovelmen, Miami, and Janice Burton Sharpstein and Laura Besvinick of Sharpstein & Sharpstein, Coconut Grove, and Ray Ferrero, Jr., Wilton L. Strickland and Ricki Tannen of Ferrero, Middlebrooks, Strickland and Fischer, P.A., Ft. Lauderdale, for petitioners.

Robert A. Butterworth, Jr., Atty. Gen., and Louis F. Hubener and Mark C. Menser, Asst. Attys. Gen., Tallahassee, and Richard L. Jorandby, Public Defender, Fifteenth Judicial Circuit, and Margaret Good, Asst. Public Defender, West Palm Beach, for respondents.

George K. Rahdert of Rahdert, Anderson & Richardson, St. Petersburg, for amicus curiae, Times Pub. Co.


We review Palm Beach Newspapers, Inc. v. Burk, 471 So.2d 571 (Fla. 4th DCA 1985), wherein over the objection of both the prosecutor and the accused, petitioners (the press) sought to be present at pretrial discovery depositions and to obtain copies of depositions which had not been transcribed or filed with the trial court. The trial judge ruled, essentially, that the taking of depositions was not a judicial proceeding and there was no right of access by the public or press until such depositions were filed with the court. On appeal, the district court (en banc) held that the press has no constitutional, first amendment, right of access to the taking of pretrial depositions in a criminal case and the right of access to depositions did not accrue until they were filed with the clerk of the court. On its own motion, the district court certified two questions of great public public importance:



Id. at 579. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer both questions in the negative, and approve the decision of the district court below.

We have reviewed and considered briefs from the three petitioners, an amicus curiae brief from the Times Publishing Company in support of petitioners, and answer briefs from respondents. All together, the briefs and appendices comprise hundreds of pages. We do not consider it necessary or desirable to address every point raised in support of the opposing views, but have identified three critical points worthy of comment:

1. Does the press have a qualified right under the first amendment to the United States Constitution to attend pretrial discovery depositions and to obtain copies of unfiled depositions?

2. Does the press have a qualified right under Florida rules of discovery to attend pretrial discovery depositions and to obtain copies of unfiled depositions?

3. Does the press have a qualified right to obtain copies of unfiled depositions under section 119.07, Florida Statutes (1985)?

Petitioners cite a series of opinions from the United States Supreme Court and this Court, the rationale of which, petitioners urge, supports the broad proposition that under the United States Constitution criminal pretrial proceedings are presumptively open to the public. Consequently, petitioners urge, the press may not be barred unless there is a showing of an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Petitioners acknowledge that none of the cases, with one exception, dealt with the discovery process but argue by analogy that access to pretrial discovery is critical to freedom of the press because an overwhelming majority of criminal prosecutions are resolved pretrial. Without such access, petitioners urge, the public will be denied critical information on the criminal justice system. In essence, petitioners are asking that public access to criminal trials be expanded to include the criminal discovery process. For the reasons which follow we decline to do so.

The question of public access to pretrial criminal proceedings directly implicates a variety of constitutional rights: the due process right to a fair trial under the fifth and fourteenth amendments; the rights to a speedy and public trial by an impartial jury in the venue where the crime was allegedly committed under the sixth amendment; the rights of the public and press under the first amendment; and the privacy rights of the accused and other trial participants under the first amendment and article I, section 23 of the Florida Constitution. It also implicates the state's interest in inhibiting disclosure of sensitive information and the right of the public to a judicial system which effectively and speedily prosecutes criminal activities. It is the balance between these rights which is at issue. The United States Supreme Court has addressed the relationship between these various constitutional provisions as they apply to specific stages of criminal proceedings. For our frame of reference, we now turn to this body of case law.

In Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), the accused, with the acquiescence of the state, persuaded the trial court to deny press and public access to a pretrial suppression hearing because the buildup of adverse publicity jeopardized the defendant's right to a fair trial. On review, the Court acknowledged that the sixth amendment permits and presumes open trials as a norm, but "there exists no persuasive evidence that at common law members of the public had any right to attend pretrial proceedings; indeed, there is substantial evidence to the contrary." Id. at 387, 99 S.Ct. at 2909. This was so, the Court reasoned, because public access to pretrial proceedings may pose a hazard to the fairness of the trial and, under the sixth amendment, public trials were clearly associated with the protection of the accused, not with an independent right of the public to attend trials. The Court declined to decide whether there was a first and fourteenth amendment right to attend criminal trials. Instead, the Court assumed, arguendo, that there was such a right and held that the trial court, under the circumstances of the case, had properly balanced the right of the accused to a fair trial against the right of the press and public to have access to pretrial proceedings.

It is clear from Gannett that where a defendant's right to a fair trial conflicts with the public's right of access, it is the right of access which must yield. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), makes clear, however, that while a defendant, generally, may compel a public trial, there is no similar right to a private trial. There, the accused, with the concurrence of the state, succeeded in closing the trial itself. The United States Supreme Court recognized that there was no explicit constitutional provision that the public had a right to attend trials. Nevertheless, because of the common law history of public access to trials and the importance of such access to the commonwealth, the Court held

that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and "of the press could be eviscerated." Branzbureg, [v. Hayes ], 408 U.S., at 681, 92 S.Ct., [2646] at 2656 [33 L.Ed.2d 626 (1972) ].

Id. at 580, 100 S.Ct. at 2829, footnote omitted.

In Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I ), the trial court closed six weeks of jury voir dire and refused press requests for a transcript of the jury selection proceedings. The purported reasons for closure were the right of the defendant to a fair trial and the right of the prospective jurors to privacy. The United States Supreme Court noted that jury selection had been presumptively open to the public in England and in Colonial America when the Constitution was adopted. Thus, the Court reasoned, open jury selection was a component of an open trial which

enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.

Id. at 508, 104 S.Ct. at 823. The Court held that it was error to close the proceedings and totally suppress the transcript because there were no findings that the right to a fair trial and privacy interest were threatened and there was a failure to consider alternatives to closure of the jury selection and suppression of the transcript.

In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the trial court closed a pretrial suppression hearing over the objection of the accused. The United States Supreme Court reasoned that suppression hearings often resemble a bench trial and often are as important, if not more so, than the trial itself. Moreover, because motions to suppress often challenge the conduct of the police and prosecutor, the "public in general also has a strong interest in exposing ... police misconduct." Id. at 47, 104 S.Ct. at 2216. Although Waller did not present the issue of the...

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