Motion to Intervene in Hulk Hogan Lawsuit Against Gawker
Jun. 30 2015 — 8:46p.m.
Filing # 29100956 E-Filed 06/30/2015 11:33:53 AM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA TERRY GENE BOLLEA professionally known as HULK HOGAN, Plaintiff, vs. Case No. 12012447CI-011 HEATHER CLEM, et al. Defendants. ______________________________________/ FIRST LOOK MEDIA, INC., WFTS-TV and WPTV-TV, SCRIPPS MEDIA, INC., WFTX-TV, JOURNAL BROADCAST GROUP, VOX MEDIA, INC. WFLA-TV, MEDIA GENERAL OPERATIONS, INC., CABLE NEWS NETWORK, INC., BUZZFEED, and THE ASSOCIATED PRESS Intervenors. _____________________________________/ MOTION TO INTERVENE, AND MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION TO DETERMINE CONFIDENTIALITY OF COURT RECORDS AND FOR PROTECTIVE ORDER EXCLUDING THE PUBLIC AND PRESS AT TRIAL FOR CERTAIN EVIDENCE AND ARGUMENT Intervenors, First Look Media, Inc., WFTS-TV and WPTV-TV, Scripps Media, Inc., and WFTX-TV, Journal Broadcast Group, Vox Media, Inc., WFLA-TV, Media General Operations, Inc., Cable News Network, Inc. (“CNN”), Buzzfeed, and The Associated Press (“AP”) (collectively, the "Intervenors"), move the Court to intervene in this matter, to schedule an expedited hearing at which this Motion may be heard, and to deny Plaintiff's Motion to Determine Confidentiality of Court Records And For Protective Order Excluding The Public And Press At
Trial For Certain Evidence And Argument (“Closure Motion”), as well as any other motion filed by Plaintiff to seal any portion of the record or close any portion of the proceedings in this case. Intervenors are a coalition of internet, broadcast and print publishers dedicated to their function as watchdogs of all institutions of government, including the courts in the Tampa Bay area, through rigorous and transparent news coverage. Intervenors are concerned with principles that transcend the subject matter of the specific publication at issue here, and which are universally applicable to all Intervenors - and indeed all journalists who work to provide the public with timely and informative news coverage - regardless of their primary publishing medium or topic category. The overarching principles at stake - that the public is entitled to know what takes place in the courts of the state of Florida, and the First Amendment right of Intervenors to report what happens in the courtroom to its readers - transcend this case alone. The fundamental proposition that the public is entitled to know and be informed about how decisions are made and how disputes are resolved peacefully through our civil justice system has deep roots in Florida. As Chief Justice Charles T. Canady stated in a letter dated November 17, 2010 (a copy of which is attached hereto as Exhibit “A”), in response to closure issues that had been brought to the attention of the Florida Supreme Court in the context of civil foreclosure cases: The courts of Florida belong to the people of Florida. The people of Florida are entitled to know what takes place in the courts of this state. No crisis justifies the administrative suspension of the strong legal presumption that state court proceedings are open to the public. The reason is crystal clear – in the absence of access to courts, and the evidence put on by the parties in order for a judge or jury to render a decision, the public cannot have confidence in their court system. No reason advanced by the Plaintiff here justifies a breach of this fundamental principle. The transparency essential to the public’s confidence in the judicial process is at grave 2 #35994742_v1
risk in this case should the Court grant the Closure Motion, or any other motion to seal court records or to close the courtroom in this case. In support hereof, Intervenors state as follows: 1. On June 12, 2015, Plaintiff, Terry Gene Bollea, professionally known as “Hulk Hogan” (“Hogan”) filed his Closure Motion. The central focus of the Closure Motion is also the gravamen of his claim for alleged invasion of privacy in this case; a sex tape showing him engaged in sexual intercourse with a woman who reportedly is Heather Clem, the ex-wife of local radio shock jock Bubba the Love Sponge Clem. Portions of the sex tape have been published and widely reported on since 2012. Hogan has frequently contributed to public discussions in the media about the video. 2. Hogan now seeks this Court’s assistance in what would be an extreme departure from established Florida law – a departure which finds no support in any authority Hogan relies upon. Purportedly seeking to protect the privacy which he claims has already been invaded, Hogan seeks a court order preventing the very thing at issue from being available to the press and public during a public trial. Hogan has also filed nearly two dozen other motions seeking to seal large portions of the record and proceedings. 1 This effort to try his case in private, rather than in public, should be rejected by the Court. 3. The Intervenors in this matter are: (i) First Look Media, Inc., a digital journalism company and publisher of the internet magazine The Intercept. First Look Media is based on the 1 It is the understanding of Intervenors that Hogan has filed approximately 23 pretrial motions in limine, some of which purport to address various discrete sealing issues. While Intervenors specifically address Hogan’s Closure Motion herein, Intervenors also oppose any attempt by Hogan to seal any portion of the record at what should be a public trial of this action. The same principles that govern the Closure Motion should also govern the efforts to seal any evidence, as set forth in Fla. R. Jud. Admin. 2.420(e). 3 #35994742_v1
belief that democracy depends on a citizenry that is highly informed and deeply engaged in the issues that affect their lives, including full and uninhibited access to court proceedings such as this one; (ii) WFTS-TV, the ABC affiliate television station that serves the Tampa Bay area, operates the web site abcactionnews.com, and is owned by Scripps Media, Inc. WPTV-TV is the NBC affiliate television station based in West Palm Beach, Florida, operates the web site wptv.com, and is owned by Scripps Media, Inc. WFTX-TV is the FOX affiliate in Ft. Myers, Florida, operates the web site fox4now.com, and is owned by Journal Broadcast Group, a Scripps Media, Inc., company. WFTS-TV, WPTV-TV and WFTX-TV all depend on full access to Florida courts, including this court, to provide Floridians and others with news and information; (iii) Vox Media, Inc., is a digital media company that empowers smart emerging digital voices with proprietary technology to create and distribute their stories, and connect with an audience of 165 million affluent and educated young adults worldwide. Vox Media is comprised of eight distinct media brands covering major consumer categories: The Verge (Technology and Culture), Vox.com (News), SB Nation (Sports), Polygon (Gaming), Eater (Food and Nightlife), Racked (Shopping, Beauty and Fashion), Curbed (Real Estate and Home), and Re/code (Tech Business); (iv) WFLA-TV, is the NBC affiliate television station in Tampa that serves the Tampa Bay area, operates the web site wfla.com, and is owned by Media General Operations, Inc.; (v) CNN is a division of Turner Broadcasting System, Inc., a Time Warner Company, is a portfolio of two dozen news and information services across cable, satellite, wireless devices and the Internet in more than 200 countries and territories worldwide. Domestically, CNN reaches more individuals on television, the web and mobile devices than any other cable TV news organization in the United States; internationally, CNN is the most widely distributed news channel reaching more than 271 million households abroad, and CNN Digital is a top network for online news, 4 #35994742_v1
mobile news and social media. Additionally, CNN Newsource is the world's most extensively utilized news service partnering with hundreds of local and international news organizations around the world. CNN divisions Head Line News and CNN Money have each reported on this case, and will continue to do so; (vi) Buzzfeed is a social news and entertainment company which provides shareable breaking news, original reporting, entertainment, and video across the social web to its global audience of more than 200 million people; (vii) The AP is a not-for-profit news cooperative whose members are U.S. newspapers and broadcasters. The AP operates from more than 280 locations worldwide, and it has significant operations within the State of Florida. On any given day, AP's content can reach more than half of the world's population. 4. Hogan’s Closure Motion fails to meet the high burden established by Florida law for restricting access by the public and press to evidence presented in a public trial. Any order restricting access to the sex tape, or any other evidence at trial, including court testimony, as well as argument of counsel, is required to pass the rigors of Florida Rule of Judicial Administration 2.420, which broadly provides that "[t]he public shall have access to all records of the judicial branch of government" and establishes a high bar that Hogan’s Closure Motion cannot clear. 5. The First Amendment right of access is an affirmative, enforceable right that lies at the core of the public oversight of government. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n. 17 (1980) (noting that "historically both civil and criminal trials have been presumptively open”); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). The standing of the press to enforce this right is well-settled in Florida. See WESH Television, Inc. v. Freeman, 691 So. 2d 532, 534-35 (Fla. 5th DCA 1997) (holding that the press has the right to be heard prior to the entry of an order closing public records); Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla. 1988) (recognizing right of news media to challenge any closure 5 #35994742_v1
order in a civil case); Times Publ’g Co. v. Penick, 433 So. 2d 1281, 1284 (Fla. 2d DCA 1983); News-Press Publishing Co. v. State, 345 So. 2d 865, 866 (Fla. 2d DCA 1977) (newspapers entitled to intervene to seek access to sealed deposition transcripts, because closure order had the "practical effect of making it more difficult for the press to obtain information [that] it may wish to publish"). Intervenors, therefore, are entitled to intervene in this action for the limited purposes of defending the right of access to judicial proceedings, and to publish information from them. 6. In Florida there is a long tradition of public access to judicial proceedings, including civil trials. "[A] strong presumption of openness exists...A trial is a public event, and the filed records of court proceedings are public records available for public examination." See Barron, 531 So. 2d at 118; Goldberg v. Johnson, 485 So. 2d 1386, 1388 (Fla. 4th DCA 1986) ("[T]he public and press have a right to know what goes on in a courtroom whether the proceeding be civil or criminal."). 7. The closure Hogan seeks to purportedly protect his privacy over a sex tape, portions of which have been widely disseminated on the Internet, and that he chose to bring to the courts for adjudication, is prohibited by Rule 2.420 of the Florida Rules of Judicial Administration, and this type of closure has been consistently rejected by Florida courts. As the First District Court of Appeal held nearly 20 years ago in Florida Freedom Newspapers, Inc. v. Sirmons, 508 So.2d 462, at 463 (Fla. 1st DCA 1987), "[t]here is no private litigation in the courts of Florida. All proceedings before the trial judge are public proceedings." 8. Intervenors respectfully request that this Court deny Hogan’s Closure Motion, as well as any other motion filed by Hogan to seal any portion of the record or close any portion of the proceedings at the trial of this case. 6 #35994742_v1
WHEREFORE, Intervenors respectfully request that this Court enter an appropriate order granting this Motion, and denying Plaintiff's Motion To Determine Confidentiality Of Court Records And For Protective Order Excluding The Public And Press At Trial For Certain Evidence And Argument, as well as any other motion filed by Plaintiff to seal any portion of the record or close any portion of the proceedings in this case. MEMORANDUM OF LAW On countless occasions, courts have been asked to entertain orders limiting information that may be released to the public concerning judicial matters. Before a court enters such an order it must conduct an exacting inquiry into the circumstances. Fla. R. Jud. Admin. 2.420(e) specifically addresses the type of requests made by Hogan’s Closure Motion. Fla. R. Jud. Admin. 2.420(e) provides that any Court order must, among other things, state the particular grounds under subdivision (c) for determining that the information at issue is confidential. In addition, the Court must make a finding “that: (i) the degree, duration, and manner of confidentiality ordered by the court are no broader than necessary to protect the interests set forth in subdivision (c); and (ii) no less restrictive measures are available to protect the interests set forth in subdivision (c) … .” Hogan appears to rely on Fla. R. Jud. Admin. 2.420(c)(9)(A)(i) and (vi) in arguing in his Closure Motion that he wants the sex tape and other matters declared confidential for trial purposes in order to (1) “prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice,” and (2) “avoid substantial injury to a party (Hogan) by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed.” He also references Article I, Section 23, of the Florida Constitution. None of these grounds are sufficient in this case to support the relief Hogan requests. 7 #35994742_v1
I. Court proceedings and records are presumptively open. Newsgathering is protected by the First Amendment. See United States v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978) ("The Supreme Court has recognized that newsgathering is an activity protected by the First Amendment."); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975) (newsgathering "qualifies for First Amendment protections"); CBS Inc. v. Smith, 681 F. Supp. 794, 803 (S.D. Fla. 1988) ("[s]imply put, newsgathering is a basic right protected by the First Amendment"). The first amendment’s broad shield for freedom of speech and of the press is not limited to the right to talk and print. The value of these rights would be circumscribed were those who wish to disseminate information denied access to it, for freedom to speak is of little value if there is nothing to say. In re The Express-News Corp., 695 F.2d 807, 808 (5th Cir. 1982). Reporting by the press on trials and cases pending before the courts serves to protect litigants’ rights to fair and impartial adjudications of their claims. As described by the United States Supreme Court: Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. * * * A responsible press has always been regarded as the handmaiden of effective judicial administration . . . . Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 838-39 (1978). Open courts and court records provide the “appearance of fairness [that is] so essential to public confidence in the system.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984). In this context, the 8 #35994742_v1
media serves as a surrogate for the public. The media's access to judicial proceedings and records and reporting thereon informs the public with respect to those proceedings. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559-60 (1976); Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978). Courts have recognized that the "protected right to publish the news would be of little value in the absence of sources from which to obtain it." CBS Inc. v. Young, 522 F.2d at 238. The United States Supreme Court has opined that "[w]ithout some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681 (1972). "If a court order burdens constitutional rights and the action proscribed by the order presents no clear and imminent danger to the administration of justice, the order is constitutionally impermissible." CBS v.Young, 522 F.2d at 240. Accordingly, an order that inhibits newsgathering carries a presumption against its constitutionality. An order that impinges on the "journalistic right to gather news" must therefore be "narrowly tailored to prevent a substantial threat to the administration of justice." In re Express-News Corp., 695 F.2d 807, 810 (5th Cir. 1982); CBS, Inc. v. Smith, 681 F. Supp. 794, 796 (S.D. Fla. 1988); see also Lewis, 426 So. 2d at 8 (holding that closure order must extend no further than the circumstances warrant). A court must also consider less restrictive alternatives before restraining newsgathering activities. Id.; Fla. R. Jud. P. 2.420(c)(9)(C) and (e). Florida's Supreme Court has been equally forceful in recognizing that court proceedings are the public's business. In a pair of decisions – Miami Herald Pub. Co. v. Lewis, 426 So. 2d 1 (Fla. 1982) and Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988) – the Court adhered to "the well established common law right of access to court proceedings and records" in both criminal and civil cases. Barron, 531 So. 2d at 116. Rule 2.420, Florida Rules of Judicial Administration, was adopted from those rulings. 9 #35994742_v1
II. Plaintiff's Closure Motion Fails to Establish Sufficient Grounds to Seal Court Records and to Exclude the Public and Press From Court Proceedings. "This is no private litigation in the courts of Florida. All proceedings before the trial judge are public proceedings." Florida Freedom Newspapers, Inc. v. Sirmons, 508 So.2d 462, 463 (Fla 1st DCA 1987), approved, Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla. 1988) (reversing sealing order in divorce case). Hogan asserts a broad privacy right over the highly-publicized video, and relies on Fla. R. Jud. Admin. 2.420(c)(9)(A)(vi) to argue that the video should be considered confidential. His reliance, however, is misplaced. Not only should the video and any other evidence at trial not be considered confidential, but the portion of the Rule upon which Hogan relies is not applicable. In appropriate circumstances, Fla. R. Jud. Admin. 2.420(c)(9)(A)(vi) permits the Court to declare a judicial record confidential where that evidence is tangential to the case. The Rule provides that a court may cloak the evidence as “confidential” where it would be required to "avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceedings sought to be closed." (emphasis supplied). This provision, however, narrowly protects only private information in "matters that are peripheral to the litigation." Carnegie v. Tedder, 698 So. 2d 1310, 1312 (Fla. 2nd DCA 1997) (emphasis added). In other words, where the evidence is central to the proceeding, as it is here, this provision of the Rule does not apply. The Rule is not designed to protect information that is integral to the claims in the case, even if a party may think of that information as private. Id. (Rule 2.420 did not permit court to seal offensive information in counterclaim filings); see also Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 119 (Fla. 1988) (medical records, although generally protected by a privacy interest, were integral to divorce proceeding and thus could not provide the basis for closure of the proceedings). Accordingly, in this case, Rule 2.420 does not 10 #35994742_v1
permit the sealing of the video, excerpt, testimony or argument concerning the same because they are integral to Hogan's invasion of privacy claims—indeed, they are the reason he brought his claims. Similarly unavailing is Hogan's reliance on Article I, Section 23 of the Florida Constitution declaring that all persons have a right to be "free from governmental intrusion into the person’s private life" to assert constitutional protection over the video. Florida courts have consistently held that provision does not create a right to private judicial proceedings. Whenever litigants utilize the judicial process they place themselves in the position where the details of their difficulties will invariably be made public. It is sometimes felt that this is too high a price to pay for living in a civilized society, particularly when measured against a person's right to privacy ... But every right is not absolute to the point of inflexibility; some rights must bend and give way to other rights in certain instances. Goldberg v. Johnson, 485 So. 2d 1386, 1389-90 (Fla. 4th DCA 1986) (citing State Ex. Rel. Gore Newspaper v. Tyson, 313 So.2d 777, 783, 784 (Fla. 4th DCA 1975), overruled on other grounds, English v. McCrary, 348 So.2d 293 (Fla.1977)); Carnegie, 698 So. 2d at 1312 ("Historically, litigants have had no reasonable expectation of privacy with regard to trial proceedings and court files."). In short, one party's preference that proceedings be conducted in private to prevent disclosure of information they consider private is not a basis for overcoming the strong presumption in favor of "preserving the independence and integrity of the judicial process through open and publicly scrutinized judicial proceedings [on] the issue." Sirmons, 508 So.2d at 464-65. Hogan's belief that the tape, excerpts and testimony about them "is private, intrusive and potentially offensive" is a wholly insufficient basis to override the public's right of access to the court proceedings and records. See Palm Beach Newspapers, Inc. v. Limbaugh, 967 So. 2d 219 11 #35994742_v1
(Fla. Dist. Ct. App. 2005) (settlement agreement viewed by judge in divorce proceedings even though handed back to the parties and not filed in the record was a public record). Moreover, neither the video nor its content are truly private. To the contrary, a substantial amount of the information is already public. The excerpts were available online and have been viewed by more than 2 million people. The video and excerpt have been the subject of public disclosure and discussion for more than three years now. Plaintiff himself has widely commented on them, their contents, and the events surrounding the depictions in the video. Thus, any order sealing the video and excerpts at this point would be futile. Hogan also appears to rely on Fla. R. Jud. Admin. 2.420(c)(9)(A)(i) which is designed to “prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice.” Hogan argues that he cannot obtain a fair trial unless the video is declared confidential, and he also posits that the public attending the trial may react in a way that disturbs the order and decorum of the trial itself. Of course, these arguments are wildly speculative. There is no basis to suggest that in order to consider and weigh the evidence involved the jury must do so in private. That runs counter to common sense and the long history of open trials in Florida where, particularly in criminal cases where there are charges such as a rape or murder, juries consider evidence that would generally be far more upsetting than what is at issue here. Juries perform their function in view of the public daily throughout Florida. Finally, the suggestion that members of the press and public that may be in attendance cannot be adequately controlled by the Court should be rejected. This Court has the ability through numerous devices to control order in the courtroom. CONCLUSION For all of the foregoing reasons, Intervenors respectfully request that this Court enter an appropriate order granting this Motion, and denying Plaintiff's Motion To Determine 12 #35994742_v1
Confidentiality Of Court Records And For Protective Order Excluding The Public And Press At Trial For Certain Evidence And Argument, as well as any other motion filed by Plaintiff to seal any portion of the record or close any portion of the proceedings in this case. Respectfully submitted, HOLLAND & KNIGHT LLP s/ Timothy J. Conner Timothy J. Conner Florida Bar No. 767580 50 North Laura Street , Suite 3900 Jacksonville, Florida 32202 Telephone: (904) 353-2000 Facsimile: (904) 358-1872 [email protected] Charles D. Tobin Florida Bar No. 816345 800 17th St., N.W., Suite 1100 Washington, D.C. 20006 Telephone: (202) 955-3000 Facsimile: (202) 955-5564 E-mail: [email protected] Attorneys for Intervenors, First Look Media, Inc., WFTS-TV and WPTV-TV, Scripps Media, Inc., WFTX-TV, Journal Broadcast Group, Vox Media, Inc., WFLA-TV, Media General Operations, Inc., Cable News Network, Inc., Buzzfeed and The Associated Press. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Motion has been served upon the following individuals by placing a copy in the United States mail, sufficient postage affixed, on this 30th day of June, 2015, and addressed as follows: 13 #35994742_v1
Gregg D. Thomas Rachel E. Fugate THOMAS & LOCICERO PL 601 South Boulevard P.O. Box 2602 Tampa, FL 33601 [email protected] [email protected] Kenneth G. Turkel Shane B. Vogt BAJO CUVA COHEN & TURKEL, 100 N. Tampa Street, Suite 1900 Tampa, FL 33602 [email protected] [email protected] Charles J. Harder Douglas E. Mirrell Sarah Luppen HARDER MIRELL & ABRAMS 1925 Century Park East, Suiet 800 Los Angeles, CA 90067 [email protected] [email protected] [email protected] Seth D. Berlin Michael D. Sullivan Michael Berry Alia L. Smith Paul J. Safier LEVINE SULLIVAN KOCH & SCHULZ LLP 1899 L. Street, NW, Suite 200 Washington, DC 20036 [email protected] [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiff Barry A. Cohen Michael W. Gaines BARRY A. COHEN LAW GROUP 201 East Kennedy Blvd., Suite 1000 Tampa, FL 33602 [email protected] [email protected] Counsel for Defendants Gawker Media LLC, Nick Denton and A. J. Daulerio Attorneys for Defendant Heather Clem David Houston LAW OFFICE OF DAVID HOUSTON 432 Court Street Reno, NV 89501 [email protected] s/ Timothy J. Conner Attorney 14 #35994742_v1
wmMM Supreme Court of Jfiorttra 500 South Duval Street Tallahassee, Florida 32399-1925 CHARLES T. CANADY CHIEF JUSTICE BARBARA J. PARIENTE R. FRED LEWIS PEGGY A. QUINCE RICKY POLSTON JORGE LABARGA JAMES E. C. PERRY THOMAS D. HALL CLERK OF COURT November 17, 2010 ICEVIN WHITE ACTING MARSHAL JUSTICES Mr. Sam Morley General Counsel The Florida Press Association 336 East College Avenue, Suite 203 Tallahassee, Florida 32301 Mr. Talbot D'Alemberte Mr. Larry Schwartztol Mr. Randall Marshall Mr. James Parker Rhea Mr. C. Patrick Roberts Mr. Gil Thelen Mr. James Denton Gentlemen: Thank you for your letter of November 12, 2010, regarding public access to Florida foreclosure proceedings. As you know, judicial ethics rules prohibit me from intervening in actual legal disputes pending or likely to be filed in lower courts, including the possible future litigation you mentioned with regard to an incident in Duval County. But Canon 3C(3) of the Florida Code of Judicial Conduct expressly says that "[a] judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure . . . the proper performance of their other judicial responsibilities." Under the Florida Constitution, article V, section 2(b), I
Mr. Sam Morley, et al. November 17, 2010 Page Two am the chief administrative officer of the state courts system. I write you solely in that capacity. The courts of Florida belong to the people of Florida. The people of Florida are entitled to know what takes place in the courts of this state. No crisis justifies the administrative suspension of the strong legal presumption that state court proceedings are open to the public. Today I have sent to the chief judges of Florida's twenty judicial circuits a supervisory memorandum—a copy of which is enclosed—setting forth my administrative directive on this matter. Under that directive, the chief judges shall ensure that the judges they supervise and the staff who report to those judges, as well as bailiffs and employees of the clerks of court, are not violating the rights of Floridians by improperly closing judicial proceedings to the public. The chief judges shall promptly exercise their administrative and supervisory authority to countermand closures or impediments to access that are inconsistent with Florida law. Sincerely, t&cn* i*L£fiS-*0&/ Charles T. Canady CTC/ps Enclosure
Supreme Court of Jflottba 500 South Duval Street Tallahassee, Florida 32399-1925 CHARLES T. CANADY CHIEF JUSTICE BARBARA J. PARIENTE R. FRED LEWIS PEGGY A. QUINCE RICKY L. POLSTON JORGE LABARGA JAMES B.C. PERRY JUSTICES THOMAS D. HALL CLERK OF COURT KEVIN WHITE ACTING MARSHAL MEMORANDUM TO: Chief Judges of the Circuit Courts FROM: Chief Justice Charles T. Canady /J^/ DATE: November 17, 2010 SUBJECT: Mortgage Foreclosure Proceedings dl^- Enclosed for your review and action is a letter dated November 12, 2010, that I received from the Florida Press Association and other organizations. The letter alleges that in some instances, members of the public and/or press either have been advised that they cannot attend mortgage foreclosure proceedings or have been prevented from attending such proceedings. As the chief administrative officer of the Florida judicial branch, I am directing all chief judges to examine the current practices within their respective circuits to ensure that those practices are entirely consistent with the constitutional, statutory, procedural rale, and case law requirements of this state regarding the presumption that state court proceedings are open to the public. I also ask that you communicate with all judges and court staff in your circuit to remind them of the relevant provisions relating to open court proceedings. It is important for you to communicate with the clerks of court and bailiffs within your circuit as well to ensure that those offices provide any visitors
Chief Judges of the Circuit Courts November 17, 2010 Page Two or callers with the correct information about attendance at mortgage foreclosure or other court proceedings. I would also like to take this opportunity to clarify the Supreme Court's understanding of the goals of the Foreclosure and Economic Recovery Funding Initiative, which was partially funded by the Legislature during the 2010 Legislative Session. I have'reviewed Judge John Laurent's memorandum of October 28, 2010, a copy of which is attached and incorporated herein by reference. I agree with his description of the 62-percent goal established by the Trial Court Budget Commission as a means to help measure the court system's progress in the initiative and to document how the appropriation for the foreclosure initiative is being spent. There is no reason why the 62-percent goal should interfere with a judge's ability to adjudicate each case fairly on its merits. Each case must be adjudicated in accordance with the law. Thank you for your ongoing efforts to appropriately administer and resolve the avalanche of mortgage foreclosure cases that have been overwhelming the court system during the past few years. I recognize that the challenge you face in assuring that these cases are resolved properly is unprecedented. I am confident that with the cooperation of all judges and court staff—along with the tools of the revised rules of court procedure, implementation of the managed mediation program, and the influx of court resources through the Foreclosure and Economic Recovery Funding Initiative—the Florida courts will be able to meet this challenge in a manner that protects and preserves the rights of all parties as well as interested observers. CTC/LG/dgh Enclosures cc: Trial Court Administrators
Florida Press Association 336 E. College Avenue, Suite 203 Tallahassee, FL 32301 (850)521-1199 Fax (850) 577-3629 Chief Justice Charles T, Canady Florida Supreme Court 500 South Duval Street Tallahassee, FL 32399-1925 November 12, 2010 Dear Chief Justice Canady, We write to express our concern that the right to open access to judicial proceedings is being unduly impeded in foreclosure! proceedings around the state. Our organizations have received numerous reports that extraordinary barriers to access are preventing members of the general public, as well as representatives of the news media, from observing foreclosure proceedings injudicial circuits around the state. We believe these barriers undercut the transparency of the judicial process; they also violate the strong presumption of open access to judicial proceedings under Florida law. We urge you to take action to secure the public's right to observe the workings of the judicial system. As you know, Florida law recognizes a strong presumption in favor of open access to judicial proceedings. We have no objection, of course, to ordinary security screening measures. We are concerned, however, that the barriers to access here go far beyond such measures, leaving members of the public and press subject to the discretion of individual foreclosure judges to admit or exclude them. The reports we have received come from all around the state, and although the precise nature of the barriers to access varies, a troubling pattern emerges: foreclosure divisions recently established by the judicial circuits have been operating under a presumption of closure to members of the general public, rather than the presumption of openness mandated by Florida law. An illustrative, but not exhaustive, list of encounters that have been reported to our organizations since August 2010 follows: • A court observer in Hillsborough County called the court to ask about the rules governing attendance at foreclosure proceedings and was told that the proceedings were not open to the public. • A pro se defendant in Duval County was told by a member of court security that she could not access foreclosure proceedings because only attorneys were permitted. • A court observer called the Orange County courthouse to ask about attending foreclosure proceedings. She was informed that foreclosure healings were held "in private chambers" and therefore not open to the public.
• In Citrus County, an individual preparing to mount a pro se defense in his own foreclosure case attempted to attend foreclosure hearings in advance of his own so that he could know what to expect when his case was heard. He was told that' foreclosure hearings are "private" and take place in judges' chambers, and that he would not be permitted to observe them. • Most recently, a legal aid attorney in Jacksonville attended a foreclosure proceeding accompanied by a reporterfromRolling Stone Magazine. Neither the attorney nor the reporter did anything disruptive to the proceedings, At one point the reporter left the proceedings in order to interview a pro se litigant whose case had just been heard. Later that day, the judge sent an email to the attorney castigating her for bringing the reporter into the proceedings. He stated that, while "attorneys are welcome in Chambers at their leisure," members of the media are "permitted" entry only upon "proper request to the security officer," He further informed the attorney that she "did not have authority to take anyone back to chambers without proper screening" and stated that her "apparent authorization that the reporter could pursue a property owner immediately out of Chambers into the hallway for an interview" may be "sited [sic] for possible contempt charges in the future."' In raising our concerns about this pattern of exclusion, we rely on the extensive body of case law that has made Florida a model for open government. Systematically excluding members of the press and publicfromjudicial foreclosure proceedings violates the robust guarantee of open access to courts provided by Florida law. This Court has held that "both civil and criminal court proceedings in Florida are public events and adhere to the well established common law right of access to court proceedings and records." Barron v, Fla. Freedom Newspapers, Inc., 531 So, 2d 113,116 (Fla. 1988); see also Fla. R. Jud. Admin. 2.420 (codifying public right of access to records of the judiciary), Barron articulated this right of access in forceful terras. It emphasized that "a strong presumption of openness exists for all court proceedings" and outlined the carefully circumscribed exceptions to this broad rule: [Cjlosure of court proceedings or records should occur only when necessary (a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed. 1 Since the incident in Duval County was particularly egregious, we have also asked that Chief Judge Moran consider appropriate action.
Id., at 118. Even in these exceptional circumstances, "before entering a closure order, the trial court shall determine that no reasonable alternative is available to accomplish the desired result, and, if none exists, the trial court must use the least restrictive closure necessary to accomplish its purpose," Id, The protection of public access to judicial proceedings serves fundamental constitutional values. In particular, the "value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone isfreeto attend gives assurance that established procedures are being followed and that deviations will become known." Sarasota Herald-Tribune v. State, 924 So. 2d 8,12 (Fla. 2d DCA 2005) (quoting PressEnter. Co. v. Super. Ct, 464 U.S. 501,508 (1984)). "A trial courtroom is a public'place where people have a general right to be present, and what transpires in the courtroom is public property." PlaintiffB v. Francis, No. 5:08-cv-79,2010 WL 503067, *2 (N.D. Fla. Feb. 5,2010), Foreclosure proceedings are currently a matter of intense public interest. Indeed, the media has, in recent months, scrutinized them for possible procedural deficiencies. See, e.g., Gretchen Morgenson and Geraldine Fabrikant, Florida's HighSpeed Answer to a Foreclosure Mess, N.Y. TIMES, Sept, 14, 2010; Polyana da Costa, Before Foreclosing, Judges Must Hear Out Homeowners, MIAMI DAILY BUS. REV., Oct. 14,2010. As the examples outlined above show, Florida's presumption of openness is being inverted in the context of foreclosure proceedings: courts across the state are effectively imposing a presumption of closure, which may be overcome only by special permission to observe proceedings. In effect, only those who actively assert their right of access in the face of initial barriers, and then ultimately receive permission, may exercise their right to observe foreclosure hearings. Under Florida law, there are few justifications that can counterbalance therightto access. Even when those exceptional circumstances exist, the court must still determine that no more narrowly tailored alternative is available. Barron, 531 So. 2d at 118; see also Globe Newspaper Co. v. Super. Ct.for the County ofNorfolk, 457 U.S. 596 (1982) (invalidaling statute closing trials for certain sex offenses involving minors where state had a "compelling" interest in protecting minors' privacy but where the court "offered no empirical support" that closure would effectively further that interest). There is no indication that closure of foreclosure courts occurs only when suchrigorousanalysis has taken place, Indeed, the opposite appears to be true: by choosing to conduct foreclosure hearings in "private" conference rooms or judicial chambers and treat those as closed proceedings, the burden shifts to members of the press or public to convince the court to allow access. We recognize that the heavy volume of foreclosure cases has led to difficulties finding judges and courtrooms to hear the cases. As a result, some cases are being held in chambers for lack of an available traditional courtroom. Nevertheless, the proceedings must be open, even if they are held temporarily in a smaller and less formal physical
settmg than usual. While we understand the necessity for ordinary and uniform security screening procedures, the unavailability of a traditional courtroom cannot justify a ' deprivation of the rights established under Florida law and the U.S. Constitution, This Court has noted that the press plays an indispensable role in maintaining "the judicial system's credibility in afreesociety." Barron, 531 So, 2d at 116. That credibility cannot be maintained when members of the public and media are dependent on the indulgence of the presiding judge to allow them to observe important judicial proceedings. It is our sincere hope that we, and other representatives of the media, will be able to avoid instituting litigation over the issue of access to foreclosure proceedings. We do face certain time constr'aints, however, because Florida Rule of Appellate Procedure 9,100(d) provides for expedited review of orders excluding the public and media from judicial proceedings, and it requires such petitions to befiledwithin 30 days of an exclusion order.2 Accordingly, we respectfully urge you to take corrective action to ensure citizen and press access as guaranteed by Florida'sright-of-accessjurisprudence. In particular, we ask that you promulgate an Administrative Order or take other expeditious and appropriate action to ensure that both the public and media may observe proceedings consistent with Florida law and subject only to ordinary security measures We thank you for your attention to this important matter. %m: ESWJLdr. lorley, Gen^ml Counsel le Florida Press Association Talbot D'Alemberte, Bar No. 0017529 The Florida Press Association Larry Schwartztol, Staff Attorney The American Civil Liberties Union Randall Marshall, Leg^Director The American Civil Liberties Union of Florida 2 The incident in Duval County occulted on October 26th. Accordingly, the last day to file a petition for review pursuant to Rule 9.100(d) is November 29th.
0Z__ J^pfes Parker Rhea, Director & General Counsel The First Amendment Foundation <^C C. Patrick Roberts, President & CEO Florida Association of Broadcasters Gil Thelen, Executive Director The Florida Society of Newspaper Editors JafcTes Denton, Editor The Florida Times-Union
MEMORANDUM CO URT ButigGt Commission The Honorable John F. Laurent, Chair The Honorable Margaret Steinbeck, Vice-Chair Members Catherine Brunson, Circuit Judge Paul S. Bryan, Circuit Judge Joseph P. Farina, Circuit Judge Charles A. Francis, Circuit Judge Mark Mahon, Circuit Judge J. Thomas McGrady, Circuit Judge Wayne M. Miller, County Judge Belvin, Perry, Jr., Circuit Judge Robert E. Roundtree, Jr., Circuit Judge Clayton D. Simmons, Circuit Judge Elijah Smiley, Circuit Judge Patricia V. Thomas, Circuit Judge Mike Brldenback, Court Administrator Tom Genung, Court Administrator Sandra Lonergan, Court Administrator TO: Chief Judges of the Circuit Courts FROM: John Laurent DATE: October 28, 2010 SUBJECT: Foreclosure Initiative 3rz^f^-^—f" ^ In follow up to the Judicial Administration Committee conference call held on October 18, 2010,1 am writing to reiterate the Trial Court Budget Commission's purpose for tracking the progress of cases the trial courts are hearing using funding provided for the foreclosure and economic recovery initiative. When the Florida Legislature appropriated special funding of $6 million to help the trial courts with the significant backload of foreclosure cases, the Trial Court Budget Commission established a measurement of progress that corresponded to the funding received: 62% of the backlog cases potentially could be processed because the Legislature funded 62% of the. original request from the courts. A simple case tracking system was set up to monitor the progress and identify any reasons for delays. This is so that we will be able to report to the Legislature on how these funds were used. However, the Legislature has not specifically directed us to make such a report. Carol Lee Ortman, Court Administrator Walt Smith, Court Administrator Mark Weinberg, Court Administrator Robin Wright, Court Administrator Ex-Officio Members The Honorable Kevin M. Emas Florida Conference of Circuit Court Judges The Honorable Susan F. Schaeffer Chair Emeritus Supreme Court Liaison Justice James E. C. Perry Florida State Courts System 500 South Duval Street The 62% rate is not a quota. The 62% rate is simply a goal set by the TCBC to help measure the courts' progress in this initiative and document how the appropriation for the foreclosure initiative is being spent. The 62% rate was set before the initiative began and, most notably, before many of the lender moratoriums and other delays occurred. Please assure judges working on this project that the 62% rate was never intended to interfere with their ability to adjudicate each case fairly on its merits. We will continue to monitor the progress of this initiative because we have an obligation to account for how these funds have been used. But we also will document all issues related to any difficulties that prevent or delay the court from hearing and disposing of cases before them. JL/ks Tallahassee, FL 32399-1900 www.flcourts. org cc: TCBC Members