State ex rel. Tallahassee Democrat, Inc. v. Cooksey, NN-52

• Decision Date: 22 May 1979
• Docket Number: No. NN-52,NN-52
• Citation: 371 So.2d 207
• Parties: STATE of Florida ex rel. The TALLAHASSEE DEMOCRAT, INC., Petitioner, v. The Honorable Kenneth E. COOKSEY, etc., et al., Respondents.
• Court: Florida District Court of Appeals

Page 207

371 So.2d 207

STATE of Florida ex rel. The TALLAHASSEE DEMOCRAT, INC., Petitioner, v. The Honorable Kenneth E. COOKSEY, etc., et al., Respondents.

No. NN-52.

District Court of Appeal of Florida, First District.

May 22, 1979.

C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioner.

Dave McGee, Tallahassee, Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Clifford Davis, Roosevelt Randolph, and Philip J. Padovano, Tallahassee, for respondents.

McCORD, Chief Judge.

This appeal is from an order entered by the Honorable Kenneth E. Cooksey, Circuit Judge, respondent, denying after hearing the petition of the Tallahassee Democrat, Inc., for reconsideration of his order sealing the record (the court file) in a pending and untried criminal case in the Circuit Court of the Second Judicial Circuit in and for Wakulla County, Florida. The criminal case is one in which respondents Johnny Copeland, Frank Smith and Victor Hall are charged by indictments with first degree murder and other crimes. The order was entered by the trial court on its own motion without prior notice or hearing upon a finding by the court that "the interest of justice would be best served by sealing of the Court's records in this matter." It directed that the records be sealed from all parties except the state and the defendants. We have jurisdiction to review the action of the trial court under Fla.App.R. 9.100(d) in that it is an order excluding the press and public from access to judicial records which are not required by law to be confidential.

Petitioner contends it was error to seal the file without notice to the news media and a hearing prior to the entry of such order; that an order closing the record cannot be entered absent a showing that closure is necessary to prevent a serious and imminent threat to the administration of justice and no less restrictive alternate measures are available; that an order closing the record must specifically set forth the reasons therefor so that a reviewing court can make a determination as to the constitutionality of the order.

Petitioner narrows the foregoing questions to whether the entry of the order in this case was consistent with the standards and procedures established by the Supreme Court in State ex rel. Miami Herald Pub. v. McIntosh, 340 So.2d 904 (Fla.1976), and by the Second, Third and Fourth District Courts of Appeal in News-Press Publishing Company, Inc. v. State, 345 So.2d 865 (Fla. 2 DCA 1977); Miami Herald Publishing Co. v. State, 363 So.2d 603 (Fla. 4 DCA 1978); and Miami Herald Publishing Co. v. Collazo, 329 So.2d 333 (Fla. 3 DCA 1976). Petitioner's primary reliance is upon the Supreme Court's opinion in McIntosh, the first above-cited case. Unlike the case sub judice, however, McIntosh involved prior restraint upon publication of open court proceedings rather than closure of a case file. There the trial court entered a pretrial order directing that members of the news media " 'not report any testimony presented and/or evidence exhibited in the absence of the jury unless same shall have been admitted in evidence by the Court, or is a public record, or is presented in open court in the presence of the jury.' "

In considering petitioner's first point that notice must be given and hearing must be had before a court file may be sealed, the case here requires a different procedure from that followed in prior restraint cases, such as McIntosh. In such cases, notice before restraint is not a major problem because the trial court can simply hold the proceedings in abeyance until its ruling is made. In sealing a file, however, the damage to a defendant (if damage it be) can be done before notice can be given and a hearing held to determine whether or not the file should be sealed. McIntosh is, therefore, not applicable to this proceeding. In the case sub judice, upon learning of the order sealing the file, petitioner filed its motion and a hearing was then held thereon. We find no error in the procedure followed by the trial court. In the future, however, when a trial court enters an order sealing a court file (or portion thereof), it should direct the clerk to forthwith post a copy of the court's order on the bulletin board of or the front door of the courthouse for a period of 15 days following its rendition. Such will constitute adequate notice to interested parties should they desire to move for reconsideration as did petitioners here.

Moving to the substantive question of whether or not the trial court erred in not granting petitioner's motion to reopen the file, it should be recognized that in criminal cases the trial court must balance two constitutional provisions which sometimes clash (1) freedom of the press under the First Amendment to the United States Constitution and § 4 of Art. I of the Florida Constitution, and (2) the right of a defendant to fair trial under the Sixth Amendment of the United States Constitution and § 16 of Art. I of the Florida Constitution. Where such a clash occurs, the trial judge walks a tight wire...