Smith v. Butterworth

• Decision Date: 02 February 1988
• Docket Number: No. 87-143-CIV-FTM-17.,87-143-CIV-FTM-17.
• Citation: 678 F. Supp. 1552
• Parties: Michael SMITH, Plaintiff, v. Robert A. BUTTERWORTH, Jr., Attorney General of the State of Florida, and T. Edward Austin, Jr., as State Attorney assigned to the Charlotte County Special Grand Jury, Defendants.
• Court: U.S. District Court — Middle District of Florida

678 F. Supp. 1552

Michael SMITH, Plaintiff, v. Robert A. BUTTERWORTH, Jr., Attorney General of the State of Florida, and T. Edward Austin, Jr., as State Attorney assigned to the Charlotte County Special Grand Jury, Defendants.

No. 87-143-CIV-FTM-17.

United States District Court, M.D. Florida, Tampa Division.

February 2, 1988.

Gregg D. Thomas, Tampa, Fla., for plaintiff.

George L. Waas, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendants.

ORDER

KOVACHEVICH, District Judge.

This cause is before the Court on plaintiff's motion for preliminary injunction, defendants' motion to dismiss or motion for summary judgment, defendants' supplement, and plaintiff's supplement.

FACTS:

Plaintiff Michael Smith ("Smith") is a professional reporter employed by the Punta Gorda Herald, Inc., publisher of the Charlotte Herald-News, a newspaper distributed in Charlotte County, Florida. Smith was subpoenaed and did testify before a Charlotte County Special Grand Jury on March 27, 1986.

The Special Grand Jury, which was convened to investigate claims of questionable activities and operations in the Charlotte County state attorney's office and police department, terminated its activity in April of 1986. At the time of his testimony, Smith was warned by members of the staff of T. Edward Austin ("Austin"), who were specially-assigned by the Governor to oversee the Special Grand Jury's investigation, not to reveal his testimony in any manner, because such revelation could result in criminal prosecution.

Smith wants to report and publish a news story or book about activities of the state attorney's office which had become controversial during the year prior to his being subpoenaed. Any report or book would necessarily contain revelations prohibited by Section 905.27, Florida Statutes (1985) ("the Section" or "Section 905.27") because Smith intends to base his account, in part, upon his testimony and experience before the Special Grand Jury. Smith is concerned that, if he publishes any of the questions addressed to him or his answers, he will be criminally prosecuted pursuant to Section 905.27.

Smith brings this action seeking declaratory and injunctive relief in order to acquire this Court's judgment that Section 905.27 presents an unconstitutional prior restraint and penal sanction on his First Amendment rights of free speech under the United States Constitution. Smith seeks this relief under 42 U.S.C. § 1983 to prevent the State's enforcement of the Section against him, so that he might pursue his intention to document his story concerning government activities in Charlotte County in recent years.

This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-7, (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment.

The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986),

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.

The Court also said, "Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing there is a genuine issue for trial.'" Celotex Corp., at 477 U.S. p. 322, 106 S.Ct. p. 2553, 91 L.Ed.2d p. 274. The Court is satisfied that no factual disputes remain for resolution at trial. This case presents a purely legal question.

SCOPE OF JUDICIAL REVIEW

The power to declare a law unconstitutional exists only when it is necessary to enforce or protect some constitutional right. State ex rel. Crim v. Juvenal, 118 Fla. 487, 159 So. 663 (1935). The Constitution itself must be found to be violated.... If the act does not violate the United States or State Constitution, it must be given effect. Dutton Phosphate Co. v. Priest, 67 Fla. 370, 65 So. 282 (1914).

Courts do not have the power to rule upon the policy or wisdom of the law. Fraternal Order of Police, Metro. Dade County, Lodge No. 6 v. Dep't of State, 392 So.2d 1296 (Fla.1980). Any questions as to the need or appropriateness of a particular enactment are for the legislature. Stern v. Miller, 348 So.2d 303 (Fla.1977).

Every law is presumed valid. Bunnell v. State, 453 So.2d 808 (Fla.1984). To be defective, the law must be clearly erroneous, arbitrary, and wholly unwarranted. State v. State Bd. of Education of Florida, 467 So.2d 294 (Fla.1985). In determining the validity of a statute, if possible, the courts must give it a construction that will uphold the act. Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981); and, if any doubt exists about the validity of the act, all doubt will be resolved in favor of the constitutionality of the statute. Falco v. State, 407 So.2d 203 (Fla.1981).

Since there is the presumption in favor of the validity of a statute, the burden of proving that a statute is unconstitutional is upon the party challenging the act. Peoples Bank of Indian River County v. State, Dep't of Banking & Finance, 395 So.2d 521 (Fla.1981). The challenging party, who has the burden of proof, has to prove "beyond all reasonable doubt" that the challenged act is in conflict with some designated provision of the Constitution. Metropolitan Dade County v. Bridges, 402 So.2d 411 (Fla.1981). In particular, when the legislature makes a determination that the law has a public purpose, the party challenging the determination must show that the legislative determination was so clearly wrong that it was beyond the power of the legislature to act. State v. Orange County Indus. Development Authority, 417 So.2d 959 (Fla.1982).

When a court looks at a law to see if the facts support the law, "if any state of fact, known or to be assumed, justifies the law, the court's power of inquiry ends; questions as to the wisdom, need or appropriateness are for the legislature." Fulford v. Graham, 418 So.2d 1204, 1205 (Fla. 1st DCA 1982), citing State v. Bales, 343 So.2d 9 (Fla.1977).

In determining facial unconstitutionality, the Florida Supreme Court has established the following test:

The vice of constitutional invalidity must inhere in the very terms of the title or body of the act. If this cannot be made to appear from argument deduced from its terms or from matters of which the court can take judicial knowledge, we will not go beyond the face of the act to seek grounds for holding it invalid.

Crandon v. Hazlett, 157 Fla. 574, 26 So.2d 638, 643 (1946), quoting State v. Armstrong, 127 Fla. 170, 172 So. 861, 862 (1937) (Terrell, J.).

THE FIRST AMENDMENT

Plaintiff argues that the State of Florida cannot demonstrate a compelling governmental interest in non-disclosure by grand jury witnesses, or that the Section 905.27 is narrowly tailored to further that interest, and no more restrictive than necessary. Plaintiff asserts that the State's permanent and total refusal to allow a witness, compelled by subpoena to testify in a grand jury proceeding, to later speak about his testimony, undermines the basic role of the First Amendment.

The Supreme Court has often enunciated that role:

Fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights. These may not be denied or abridged. But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction is required in order to protect the State from destruction or from serious injury, political, economic or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled. See Schenk v. United States. Citation omitted

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed 1095 (1927).

THE FIFTH AMENDMENT

The framers of the Constitution also recognized the institution of the grand jury, providing in the Fifth Amendment that no one can be prosecuted for a capital crime unless the grand jury decides that the evidence it has heard requires such prosecuti...