in the supreme court of florida · 2018. 7. 18. · case no. sc02-1635 _____ campus communications,...
TRANSCRIPT
IN THE SUPREME COURT OF FLORIDA
_______________________
Case No. SC02-1635_______________________
CAMPUS COMMUNICATIONS, INC.,
Petitioner,
vs.
TERESA EARNHARDT, et al.
Respondent.
On Certified Questions FromThe Fifth District Court of Appeal
Case No. 5D01-2419
BRIEF OF AMICI CURIAE
THE FIRST AMENDMENT FOUNDATION, THE FLORIDA SOCIETY OF NEWSPAPER EDITORS,
THE REPORTERS’ COMMITTEE FOR FREEDOM OF THE PRESS,
THE STUDENT PRESS LAW CENTER,THE SOCIETY OF PROFESSIONAL JOURNALISTS
JORDEN BURT, LLP Cobb & ColeRichard J. Ovelmen Jonathan D. Kaney Jr.FLA. BAR NO. 284904 FLA. BAR NO. 0115251Enrique D. Arana Jonathan D. Kaney IIIFLA. BAR NO. 189316 FLA. BAR NO. 0023426777 Brickell Avenue, Suite 500 150 Magnolia AvenueMiami, FL 33131-2803 Post Office Box 2491Telephone: (305) 371-2600 Daytona Beach, FL 32115-2491Facsimile: (305) 372-9928 Telephone (386) 323-9252
Facsimile (386) 255-0093
ATTORNEYS FOR AMICI CURIAE
i037016-008 : JKANE/JHARA : 00377689.WPD; 2
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE AND OF THE FACTS . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Although this Act Is Facially Unconstitutional, theLegislature, Even Now, Could Adopt a Valid ExemptionRetroactive to the Facts of this Case. . . . . . . . . . . . . . . . . . . . 3
II. Halifax Sets a Standard of Strict Enforcement of theTextual Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. The Act Is Broader than Necessary to Accomplish itsPurpose of Protecting the Immediate Family of theDeceased from Emotional Distress. . . . . . . . . . . . . . . . . . . . 22
IV. Granting Courts Discretion to Override the ExemptionBased on Good Cause Does Not Cure the Act ofOverbreadth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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TABLE OF AUTHORITIESPage
CASES:
Alonso v. State, 2002 WL 1563842 (Fla. 3d DCA 2002) . . . . . . . . . . . . . . . . . . 32
Alterra Healthcare Corp. v. Estate of Shelley, 2002 WL 31026990(Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 20, 22
Amos v. Mathews, 99 Fla. 1, 126 So. 308 (1930) . . . . . . . . . . . . . . . . . . . . . . . . 19
Bevan v. Wanicka, 505 So. 2d 1116 (Fla. 2d DCA 1987) . . . . . . . . . . . . . . . . . . 37
Bryan v. State, 753 So. 2d 1244 (Fla. 2000), cert. denied,528 U.S. 1185 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35, A-10:4
Campus Communications, Inc. v. Earnhardt,27 Fla. L. Weekly D 1595, 2002 WL 1483806(Fla. 5th DCA 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Cohen v. Cowles Media Co., 501 U.S. 663 (1991) . . . . . . . . . . . . . . . . . . . A-10:2
Crawford v. Gilchrist, 59 So. 963 (Fla. 1912) . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Crawl v. Cox Enterprises, 29 Med. L. Rptr. 1826(Ga. County Ct. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-10:2
Dade County v. Paxson, 270 So. 2d 455 (Fla. 3d DCA 1972) . . . . . . . . . . . . . . . 15
Earnhardt v. Volusia County, 29 Med. L. Rptr. 2173,2001 WL 992068 (Fla. 7th Jud. Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20
Florida League of Cities v. Smith, 607 So. 2d 397 (Fla. 1992) . . . . . . . . . . . . . . 19
Forsberg v. Housing Authority, 455 So. 2d 373 (Fla. 1984) . . . . . . . . . . . . . . . . 22
Frankenmuth Ins. Co. v. Magaha, 769 So. 2d 1012 (Fla. 2000) . . . . . . . . . . . . . 36
Halifax Hosp. Med. Ctr. v. News-Journal Corp., 701 So. 2d 434(Fla. 5th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 33
Halifax Hosp. Med. Ctr. v. News-Journal Corp.,724 So. 2d 567 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Holley v. Adams, 238 So. 2d 401 (Fla. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Hustler Magazine v. Falwell, 485 U.S. 46 (1988) . . . . . . . . . . . . . . . . . . . . A-10:2
In re T.A.C.P., 609 So. 2d 588 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
iii037016-008 : JKANE/JHARA : 00377689.WPD; 2
Kluger v. White, 281 So. 2d 1 (Fla. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21
Law and Information Services, Inc. v. City of Riviera Beach,670 So. 2d 1014 (Fla. 4th DCA 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Lloyd v. Farkash, 476 So. 2d 305 (Fla. 1st DCA 1985) . . . . . . . . . . . . . . . . . . . 17
Lorei v. Smith, 464 So. 2d 1330 (Fla. 2d DCA 1985), review denied, 475 So. 2d 695 (Fla. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Los Angeles Police Dept. v. United ReportingPublishing Corp., 528 U.S. 32 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-10:5
Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation,30 Med. L. Rptr. 1300, 2002 WL 390687(Fla. 7th Jud. Cir. No. 99-30725, January 15, 2002) . . . . . . . . . . . . . . . . . 11, 19-21
Memorial Hospital--West Volusia, Inc. v. News-Journal Corp.,729 So. 2d 373 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 11
Memorial Hospital--West Volusia, Inc. v. News-Journal Corp.,784 So. 2d 438 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Michel v. Douglas, 464 So. 2d 545 (Fla. 1985) . . . . . . . . . . . . . . . . . . . 22, A-10:2
Mitchell v. Moore, 786 So. 2d 521 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . 17-19, 21
Mizrahi v. North Miami Medical Center, Ltd., 712 So. 2d 826(Fla. 3d DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857(Fla. 3d DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Neu v. Miami Herald Pub. Co., 426 So. 2d 821 (Fla. 1985) . . . . . . . . . . . . . 13, 37
News-Journal Corp. v. Halifax Hospital Medical Center,25 Med. L. Rep. 1776 (Fla. 7th Jud. Cir. Nov. 1, 1996),aff’d, 724 So. 2d 567 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-10, 18
People ex. rel. Trombley v. Humphrey, 23 Mich. 471,1871 WL 5625 (Mich. 1871) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Shaktman v. State, 553 So. 2d 148 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . 18
Staton v. McMillan, 597 So. 2d 940 (Fla. 1st DCA 1992) . . . . . . . . . . . . . . . . . . 38
State ex rel. Davidson v. Couch, 158 So. 103 (Fla. 1934) . . . . . . . . . . . . . . . . . . 38
State v. Butler, 69 So. 771 (Fla. 1915) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
State v. Lavazzoli, 434 So. 2d 321 (Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 18
iv037016-008 : JKANE/JHARA : 00377689.WPD; 2
T.M. v. State, 784 So. 2d 442 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Times Pub. Co. v. A.J., 626 So. 2d 1314 (Fla. 1993) . . . . . . . . . . . . . . . . . . . . . 22
Tribune Company v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company,471 U.S. 1096 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993) . . . . . . . . . . . . 21, 41
Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) . . . . . . . . . . . . . . . . . 22
Williams v. City of Minneola, 575 So. 2d 683(Fla. 5th DCA 1991) . . . . . . . . . . . . . . . . . . . . . . 4, 23, 26, A-10:1, A-10:2, A-10:4
Williams v. City of Minneola, 619 So. 2d 983(Fla. 5th DCA 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-10:2, A-10:4
Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985) . . . . . 16
Zorc v. City of Vero Beach, 722 So. 2d 891 (Fla. 4th DCA 1998) . . . . . . . . . . . . 37
STATUTES:
Chapter 2000-01, Laws of Florida (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
Chapter 95-199, Laws of Florida (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Chapter 98-4, § 2, Laws of Florida (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Chapter 98-330, Laws of Florida (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Chapter 99-346, Laws of Florida (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Chapter 99-356, § 6, Laws of Florida (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 119.07(2)(a), Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
§ 119.15, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 13, 20, 33
§ 119.15(4)(b), Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
§ 286.011, Fla. Stat. (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 36
§ 395.3035(4), Fla. Stat. (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
§ 540.08, Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
§ 918.16(1), Fla. Stat. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
v037016-008 : JKANE/JHARA : 00377689.WPD; 2
CONSTITUTION:
Art. I, § 23, Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Art. I, § 24, Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16, 37
Art. I, § 24(c), Fla. Const. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passim
OTHER AUTHORITIES:
Audi (ed.) Cambridge Dictionary of Philosophy (1995) . . . . . . . . . . . . . . . . . . . . 17
Black's Law Dictionary 620 (7th ed.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Cambridge International Dictionary of English( <http://dictionary.cambridge.org>) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Caroline R. Heath, Four Days in May: Lincoln Returns toSpringfield (Springfield, Ill.: Sangamon County Historical Societyand Illinois State Historical Society, 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Government-in-the-Sunshine Manual (2002 ed.) . . . . . . . . . . . . . . . . . . . . . . . . 37
Merriam-Webster Collegiate Dictionary(<http://www.m-w.com/home.htm >) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 30
Op. Att’y Gen. Fla. 96-32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Privacy & Electronic Access to Court Records: Report andRecommendations of the Judicial Management Council . . . . . . . . . . . . . . . . . . . 22
Senate Staff Analysis and Economic Impact Statement,CS/CS/SB 1356 (March 21, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 31
The Pocket Oxford Dictionary of Current English, OxfordUniversity Press (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
vi037016-008 : JKANE/JHARA : 00377689.WPD; 2
PRELIMINARY STATEMENT
For convenience and precision of reference in this brief, the following terms will
have the stipulated meaning unless the context indicates otherwise.
Act. Chapter 2000-01, Laws of Florida (2001), section one of which is codified
at § 406.135, Florida Statutes (2001). A copy of Chapter 2001-01 is attached as
Appendix 1.
Exemption. Unless otherwise clearly indicated this term (“exemption”) refers
directly to the provisions of § 406.135 as distinguished from the entire Act.
Sunshine Amendment. The provisions of Art. I, § 24, Fla. Const., adopted by
the electors of Florida in a referendum held with the General Election in November of
1992. A copy of the Sunshine Amendment is attached as Appendix 2.
Public right of access; right of access. Those rights of access to public
meetings and public records reserved to the people by the Sunshine Amendment of
1992, including the rights, attributes, and incidents thereof as established by the
provisions of the open government laws.
Textual standard; constitutional standard. The provision of Art. I, § 24(c),
Fla. Const., that a law creating an exemption “shall state with specificity the public
necessity justifying the exemption and shall be no broader than necessary to
accomplish the stated purpose of the law.”
Public records law. The provisions of Chapter 119, Florida Statutes (2001).
Sunshine Law. The provisions of the Government-in-the-Sunshine Act (§
286.011, Fla. Stat. (2001)).
Open government laws. Collectively, the Sunshine Amendment, the Sunshine
Law, and the public records law, as the same have been construed and applied by the
courts of the State of Florida.
vii037016-008 : JKANE/JHARA : 00377689.WPD; 2
Sunshine Manual. Office of the Attorney General, Government-in-the-
Sunshine Manual (2002 ed.) as published by the First Amendment Foundation. The
Sunshine Manual has been cited as secondary authority. See, e.g., Lyon v. Lake
County, 795 So. 2d 785 (Fla. 5th DCA 2000; Zorc v. City of Vero Beach, 722 So. 2d
891 (Fla. 4th DCA 1998).
Autopsy photographs. Those records covered by the Act, i.e., “a photograph
or video or audio recording of an autopsy in the custody of a medical examiner.” See
Op. Att’y Gen. Fla. 2001-47 (2001) (construing records covered by the Act).
Citations to Florida Statutes. A citation to Florida Statutes (2001) is indicated
by citing the decimal number of the codified statute preceded by the symbol for
section, as follows: § 406.135. Such a reference, without more, is a reference to the
2001 codification. If an earlier codification is indicated, it is specified.
Earnhardt I. The “Final Judgment, Findings of Fact and Conclusions of Law”
rendered in Teresa Earnhardt et al. v. Volusia County, Office of the Medical
Examiner, 29 Med. L. Rptr. 2173, 2001 WL 992068 (Fla. 7th Jud. Cir. No. 2001-
30373-CICI, Division 31, July 9, 2002), by the Honorable Joseph G. Will, Circuit
Judge. A copy of Earnhardt I is attached as Appendix 3.
Earnhardt II. The opinion of the Fifth District Court of Appeal under review
in this proceeding– Campus Communications, Inc. v. Earnhardt, 27 Fla. L. Weekly
D 1595, 2002 WL 1483806 (Fla. 5th DCA July 12, 2002). A copy of Earnhardt II is
attached as Appendix 4.
Memorial III. The “Final Summary Judgment” rendered in Memorial Hospital-
-West Volusia, Inc. v. News-Journal Corporation, 30 Med. L. Rptr. 1300, 2002 WL
390687 (Fla. 7th Jud. Cir. No. 99-30725-CICI, Division 31, January 15, 2002) by the
Honorable Joseph G. Will, Circuit Judge. A copy of Memorial III is attached as
Appendix 5. Before his ruling, Judge Will requested proposed drafts of final judgment
viii037016-008 : JKANE/JHARA : 00377689.WPD; 2
from each party. Though he based it on News-Journal’s proposal, Judge Will carefully
edited and revised this proposal in crafting his final judgment.
Halifax Final Judgment. The Final Judgment rendered in News-Journal
Corp. v. Halifax Hospital Medical Center, 25 Med. L. Rptr. 1776 (Fla. 7th Jud. Cir.
Nov. 1, 1996). A copy of the Halifax Final Judgment is attached as Appendix 6. The
judgment was drafted by counsel for News-Journal based on a detailed bench ruling
dictated by Judge Doyle on the record at the close of the trial.
Halifax DCA. The opinion of the Fifth District Court of Appeal in Halifax
Hosp. Med. Ctr. v. News-Journal Corp., 701 So. 2d 434 (Fla. 5th DCA 1997),
affirming Halifax Final Judgment. A copy of Halifax DCA is attached as Appendix
7.
Halifax. The opinion of the Florida Supreme Court in Halifax Hosp. Med. Ctr.
v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999), affirming Halifax Final
Judgment and approving in part Halifax DCA. A copy of Halifax is attached as
Appendix 8.
Proponents/ Opponents. This brief often refers to the respondents and to the
amici who support their position as well as the State of Florida as the “proponents”
to connote their shared position as the proponents of the validity of the Act. Similarly,
the brief refers to the petitioner and amici who support its position as the “opponents.”
Sentence [#]. An individual sentence in Section 2 of Chapter 2001-1, Laws of
Florida (2001), indicated by reference to the ordinal number of the sentence in the
statement, e.g., “Act, § 2, Sentence 1.” A tabular presentation of Section 2 with
sentences numbered and with emphasis added is attached as Appendix 9. A similar
tabular presentation of Sentences 2-5 is presented in Table 3.
Appendices. A reference to one of the appendices to this brief is made as
follows: A-1:1, where the reference is to Appendix 1 at page 1.
ix037016-008 : JKANE/JHARA : 00377689.WPD; 2
Narrowly Tailored Draft. An exemplary draft of an exemption that would be
properly justified, narrowly tailored, and constitutionally retroactive to the facts of this
case together with a memorandum of comments thereon, which is attached as
Appendix 10. The five pages of the memorandum are counted as argument against the
allowable page count of this brief.
OGSRA. The provisions of § 119.15, which are known as the Open
Government Sunset Review Act, under which exemptions that have expired by their
terms are reviewed for re-enactment.
1037016-008 : JKANE/JHARA : 00377689.WPD; 2
STATEMENT OF THE CASE AND OF THE FACTS
Amici accept the statement of the case and of the facts in the brief of Petitioner,
Campus Communications, Inc.
SUMMARY OF ARGUMENT
Amici endorse and adopt the position of Campus Communications Inc. as to
all questions presented in this appeal but address only the question whether the Act
complies with the “exacting constitutional standard of article I, section 24(c)” of the
Florida Constitution. Halifax Hospital Medical Center v. News-Journal, 724 So. 2d
567, 569 (Fla. 1999).
The Sunshine Amendment in relevant part provides that “[e]very person has the
right to inspect or copy any public record . . . except with respect to records
exempted pursuant to this section.” The Sunshine Amendment imposes “exacting
constitutional standards” for exemptions from the constitutionally mandated right of
the public to inspect and copy public records. Halifax. Such laws “shall state” (i)
“with specificity” (ii) “the public necessity” (iii) “justifying the exemption” and (iv)
“shall be no broader than necessary” (v) “to accomplish the stated purpose of the
law.” Art. I, § 24(c), Fla. Const. Thus, judicial review of the constitutionality of an
exemption entails the careful consideration of these five interrelated questions.
The first two questions require judicial evaluation of whether the Legislature has
identified a “public necessity,” and with the requisite “specificity.” Generalized
concerns regarding matters of “identifiable public purpose” are insufficient because
they are both too general and not sufficiently acute. The public purpose must rise to
the level of “necessity” before it may justify an exemption, and it must be specified
with a most concrete and limited scope.
Having determined whether the exemption specifically identifies a matter of
genuine public necessity, the court must then consider the relationship between that
2037016-008 : JKANE/JHARA : 00377689.WPD; 2
necessity and the exemption; that is, there must be judicial review of the relative “fit”
between the exemption and the amelioration of the necessity which is to justify denial
of the public’s fundamental right to inspect and copy public records. If an exemption
is so radically underinclusive, or otherwise inadequate, that it does not meaningfully
“accomplish the stated purpose of the law,” it may be found that the public necessity
fails in “justifying the exemption.” Conversely, if the exemption sweeps so broadly that
it would prohibit access to public records where this denial would not be necessary
to achieve the “stated purpose of the law,” then the exemption fails to be “no broader
than necessary to accomplish” that purpose.
This brief examines the application of these five questions to the facts of this
case through the lens of this Court’s opinion in Halifax. This Court there determined
that despite the legislative language that “[i]t is a public necessity that portions of a
public hospital’s governing board meetings be closed when confidential contracts,
contract negotiations, or strategic plans are discussed,” the only valid legislatively
stated “public necessity” would have been the necessity for closing meetings that
would otherwise ventilate information which would make it “exceptionally difficult, if
not impossible, for a public hospital to effectively compete in the marketplace against
private hospitals.” Id. at 568-69. This Court in Halifax concluded that since the
exemption was not limited to such meetings, it violated Art. I, § 24, Fla. Const.
Similarly here, the “public necessity” is not what the language of the legislation
literally suggests. The Legislature has stated no “public necessity that photographs and
video and audio recordings of an autopsy be made confidential and exempt”; rather,
at best the Act presents a “necessity” to deny “widespread unauthorized dissemination
of autopsy photo-graphs and video and audio recordings” where such dissemination
“would subject the immediate family of the deceased to continuous injury.”
3037016-008 : JKANE/JHARA : 00377689.WPD; 2
Even if the Act states with adequate specificity a “public necessity,” it fails the
Halifax test because it is impermissibly overbroad to be considered “no broader than
necessary to accomplish the stated purpose of the law.” Because it exempts autopsy
records even where their dissemination would not, and could not, cause immediate
family members emotional distress, the Act is not sufficiently narrow. Dissemination
of the records is prohibited even where there are no immediate family members, the
family members are themselves long dead, the family members do not object, the
family members would have conflicts of interest with respect to access, the use of the
records would not produce emotional distress, or there would be good reason for
dissemination of the records that would outweigh the public necessity. Even more
troubling, it restricts inspection of these public records, where the emotional distress
reasonably would be caused, if at all, only by their copying and subsequent
widespread dissemination.
The grant of discretion to the courts to override the exemption when “good
cause” is shown does nothing to narrow the overbreadth of the exemption.
ARGUMENT
I. ALTHOUGH THIS ACT IS FACIALLY UNCONSTITUTIONAL, THELEGISLATURE, EVEN NOW, COULD ADOPT A VALIDEXEMPTION RETROACTIVE TO THE FACTS OF THIS CASE.
In response to the tragic death of Dale Earnhardt, the Legislature acted to
protect the immediate families of decedents from that emotional trauma which would
be inflicted by widespread dissemination of disturbing autopsy photographs. To this
end, it enacted an exemption barring all public access to all autopsy photographs ever
recorded and still within the custody of any medical examiner in Florida. This violates
1Arguendo only, Amici accept that this is a “public necessity” that would justifya correlative exemption. Obviously, this putative “public necessity” may not bedenominated a “privacy” interest because privacy rights are personal rights thatgenerally are extinguished upon death and may not be asserted by third parties.Williams v. City of Minneola, 575 So. 2d 683, 689 (Fla. 5th DCA 1991). Indeed thereis generally no standing even for the subject of a public record to assert privacyinterests to forestall its public inspection. See Alterra Healthcare Corp. v. Estate ofShelly, 2002 WL 31026990 n. 4 (Fla. 2002). The nice question, which is mooted byoverbreadth here, is whether a solicitude for the emotional response of the immediatefamilies of a tiny class of of high profile decedents to the virtual violation of a carcasstaboo should be cast into the legal form of “protection from the intentional inflictionof emotional distress” and elevated to a constitutional status that overrides thefundamental right to inspect an entire class of public records that evidence thecorrectness of official determinations of cause of death. Notwithstanding the appealingfacts of this particular case, the amici are troubled that there can be no principled wayto cabin this extraordinary expansion of the right “not to be offended,” togovernmental records access.
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the constitutional standard because the exemption is broader than necessary to
accomplish its stated purpose.1
Showing this overbreadth is easy, but the case still seems hard. This is so
because the Act states an emotionally compelling but narrow ground for its overbroad
exemption. It thus seems to force a hard choice between upholding the constitutional
law of open government and averting a real and poignant harm, between applying
neutral principles and achieving a rough but just result, between upholding the Act and
preserving the constitution itself. The lower courts chose the Act.
Each sustained the Act by subverting the constitutional standard. Judge Will
blinked away the narrow tailoring standard when he approved an exemption for a
presumptively overbroad (i.e., “presumptively private”) set of public records.
Earnhardt v. Volusia County, 29 Med. L. Rptr. 2173, 2001 WL 992068 (Fla. 7th Jud.
Cir. 2002) (“Earnhardt I”) at *5. The district court reduced the Legislature’s
constitutional mandate to “state with specificity the public necessity justifying the
exemption” down to a mere statutory admonition to identify a public purpose for the
exemption. Campus Communications, Inc. v. Earnhardt, 27 Fla. L. Weekly D 1595,
2The Narrowly Tailored Draft answers the inevitable question asked of anyadvocate who challenges a law as overly broad and attempts to cabin the effect of theexemption within the purview of the extraordinary facts of this case. In recent monthsthis draft and the accompanying memorandum have been distributed among theparties, government officials, and other interested parties.
3In addition to its other constitutional defects, the exemption is underinclusive,a failing which suggests more appropriately tailored strategies for achieving thepurpose of protecting the immediate family from distress. If an exemption is radicallyunderinclusive it may not be said “to accomplish the stated purpose of the law,” norto be “justified” by a “public necessity” the amelioration of which it does not directlyand substantially advance. The claimed public necessity here is to prevent emotionaldistress suffered by the immediate family proximately caused by the gratuitous,outrageous, or commercial exploitation of gruesome photographs of a deceasedperson through their widespread public dissemination. The Act is radicallyunderinclusive because it applies only to narrowly defined autopsy photographs, in thecustody of the medical examiner, but not to the host of other such gruesome publicrecord photographs in the custody of the police and other public agencies. Moreover,the Act does not make it unlawful to commercially exploit, or misappropriate anddisseminate individually identifiable autopsy photographs. Thus, if someone in themedical examiner’s office violates the Exemption, or an innocent error is made as to
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2002 WL 1483806 (Fla. 5th DCA 2002) (“Earnhardt II”) at *2. In the lower courts,
therefore, the doctrine of judicial review under the constitutional standard did not
survive its first showdown with hard facts.
But, there is a way to avoid such a hard result. This Court need choose between
inflicting trauma on grieving families and preserving the constitutional standard. That
choice always and already rests solely with the Legislature. Though it failed in 2001,
the Legislature has the power, even now, to adopt a valid exemption retroactive to the
facts of this case.
There are many ways this could be done. To illustrate one alternative that would
be specifically justified, narrowly tailored, and constitutionally retroactive to the facts
of this case, Amici have appended excerpts of a memorandum together with an
exemplary draft. See A-10 (the “Narrowly Tailored Draft”).2 The Governor and
Legislature, who combined forces to speed Chapter 2001-1 to passage last year, could
just as quickly adopt a valid curative measure if they so desired.3
access, the Act in no way prevents the subsequent exploitation of autopsyphotographs for commercial purposes by a person who has thereby obtained therecords. A minor amendment to the state misappropriation of likeness statute wouldhave been an alternative to the Act sufficient to cure much of this underinclusivenessand overinclusiveness. See § 540.08, Fla. Stat.
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In that respect, as well as many others, this case is not different than Halifax.
Justice Overton was moved by the exigent facts of that case to write a dissent decrying
the harm which the majority decision would visit upon the public hospitals of the state.
See Halifax at 571 (Overton, S.J. dissenting); Memorial Hospital--West Volusia, Inc.
v. News-Journal Corp.,729 So. 2d 373, 375 (Fla. 1999) (“Memorial I”) (Overton,
S.J., dissenting) (predicting that decisions in Halifax and Memorial I “will be the death
knell of the legislative scheme to level the playing field between not-for-profit hospitals
and for-profit hospitals”).
This dire prediction did not materialize. On the contrary, the Legislature
quickly adopted a revised statute narrowly tailored to protect the justifying interest. See
Chapter 99-346, Laws of Florida (1999) (revising § 395.3036). The First Amendment
Foundation cooperated with the Community Hospital Association in drafting this
statute, which stands unchallenged today. In this case, too, the Legislature quickly
may cure the deficiencies in the Act.
Thus the only question for this Court is one of constitutional law. Does the Act
state with specificity a public necessity justifying the exemption and tailor the
exemption no broader than necessary to meet that public necessity, as plainly
commanded by Art. I, § 24(c), Fla. Const.?
II. HALIFAX SETS A STANDARD OF STRICT ENFORCEMENT OFTHE TEXTUAL STANDARD.
A. THE DISTRICT COURT OVERLOOKED HALIFAX.
The Court’s decision in Halifax set a standard of strict enforcement of this
constitutional command. The Court held it is an “exacting constitutional standard . .
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. of specificity as to stated public necessity and limited breadth to accomplish that
purpose . . . .” Id. at 569. Halifax sets the controlling standard of judicial review.
Yet the district court overlooked Halifax. It did not explain, distinguish, or even
cite the case. Moreover, it paid scant attention to the constitutional text, conflating it
with a certain statutory admonition that an exemption must serve an “identifiable public
purpose.” See Earnhardt II at *2 (quoting § 119.15(4)(b) of the OGSRA and citing
Art. I, § 24(c), Fla. Const., as if the two were equivalent).
The Court should quash this deviation, restore its Halifax precedent, and review
the Act against the plain constitutional text. Just as the constitutional standard would
not survive Earnhardt II, the exemption could not survive scrutiny under the
constitutional standard.
B. HALIFAX ESTABLISHES A STANDARD OF STRICT ENFORCEMENT OFTHE PLAIN MEANING OF THE TEXTUAL STANDARD.
Because of its overlooked importance, Halifax now merits close attention. It
teaches that judicial review of an exemption requires straightforward facial analysis to
determine whether the breadth of the exemption exceeds the scope of the specifically
stated justification. It is appropriate to begin with a careful review of the facts and
holding in Halifax.
The Halifax Exemption
The exemption under review in Halifax closed “[t]hose portions of a board
meeting [of a public hospital] at which the written strategic plans, including written
plans for marketing its services, are discussed or reported on.” See § 395.3035(4), Fla.
Stat. (1995); Ch. 95-199, Laws of Florida (1995). Like the present Act, the exemption
was justified by a lengthy and general legislative recital that closure of a broad category
of records was necessary. The pertinent sentences of the statement of justification are
set out in Table 1.
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Table 1. EXCERPTS FROM CHAPTER 95-199, § 2, LAWS OF
FLORIDA
Sen. 1
[I]t is a public necessity that portions of a public hospital'sgoverning board meetings be closed when . . . strategic plansare discussed.
Sen. 2
If such meetings are not closed, critical confidentialinformation regarding . . . strategic plans regarding, forexample, growth opportunities, would be revealed, making itexceptionally difficult, if not impossible, for a public hospitalto compete in the marketplace against private hospitals,whose records and meetings are not required to be open tothe public.
The Trial Court’s Halifax Analysis
Circuit Court Judge John V. Doyle’s analysis of the five requisites of
consitutional validity deployed in three steps. First, he determined to what extent, if
any, the act specified a public necessity justifying an exemption. Second, he construed
the exemption to determine its breadth. Third, he measured the breadth of the
exemption against the scope of the justification to determine whether the “exemption
carve[d] out of the constitution only so much of the public right of access as is
necessary to achieve the stated public necessity.” See News-Journal Corp. v. Halifax
Hospital Medical Center, 25 Med. L. Rptr. 1776, 1780 (Fla. 7th Jud. Cir. 1996)
(Doyle, J.) (“Halifax Final Judgment”) aff’d, 724 So. 2d 567, 569 (Fla. 1999). (A-6).
First Step: Determine the Scope of the Justification
“The analysis begins with an examination of the statement of public necessity,”
Judge Doyle explained, “because this statement defines the boundaries within which the
Exemption must be confined.” Halifax Final Judgment at 1780. In this first step, the
judge scrutinized the legislative finding to determine whether and to what extent the act
stated with specificity a public necessity justifying the exemption, giving no effect to
4In Halifax Hosp. Med. Ctr. v. News-Journal Corp., 701 So. 2d 434, 436 (Fla.5th DCA 1997) (“Halifax DCA”), the court affirmed that Sentence 1 was a “general”statement that counted for nothing toward satisfying the constitutional standard.
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Sentence 1 and considering only Sentence 2.4 He rejected News-Journal’s argument
that the statement lacked specificity, per se, because it did not explain what comprises
“critical confidential information.” He found within Sentence 2 this specific core of
justification:
The public necessity for the Exemption is to protecthospitals from revelation of information that would make itdifficult if not impossible to compete. Such informationwould possess extremely important competitive valuebecause it would be so sensitive that it would effectivelypreclude competition if it were revealed. [T]hus understood. . ., the statement appears to the Court to be sufficientlyspecific.
Halifax Final Judgment, 25 Med. L. Rptr. at 1780.
Second Step: Determine the Breadth of the Exemption
Judge Doyle next examined the breadth of the exemption. “Having identified the
stated purpose of the act,” he said, “the next question is whether the Exemption is no
broader than necessary to achieve that purpose.” Id. He explained that this “question
is whether the Exemption would deny public access only to that information which
necessarily must be suppressed in order to preserve the ability of a public hospital to
compete.” Id.
The exemption applied to all content and discussion of hospital strategic plans.
Though the act did not define “strategic plan,” there was no disagreement on the plain
meaning of the term. The hospital submitted that “strategic planning [is] a process
whereby the hospital looks at the health care industry, looks at its local market,
determines where it wants to be in that market, identifies the major changes needed to
achieve the position, and establishes a plan to accomplish those changes.” Halifax
Final Judgment, 25 Med. L. Rptr. at 1781. News-Journal agreed that “strategy is about
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the direction of organizations[,] subjects of primary concern to senior management.”
Id. Judge Doyle concluded that “strategic planning could include virtually any aspect
of hospital management . . . any subject of concern to the management and direction
of the hospital.” Id. This defined the extraordinary breadth of the exemption.
Third Step: Measure the Breadth of the Exemption Against the Scope of the Justification
Finally, Judge Doyle measured the breadth of the exemption against the scope
of the justification. This is a question of correlation between necessity and exemption.
Judge Doyle explained the textual standard “permits an exemption to carve out of the
constitution only so much of the public right of access as is necessary to achieve the
stated public necessity.” Id. at 1789.
Applying that standard to the exemption, the judge concluded that “[w]hen such
a broad and all-encompassing concept as strategic planning is compared to the
statement of public necessity, it is obvious that the Exemption for discussion of written
strategic plans covers far more information than that which could be characterized as
‘critical confidential information’ as defined in the statement of public necessity.” Id.
Therefore, he concluded the act was facially unconstitutional.
The Supreme Court Approved the Judge Doyle’s Analysis
After the Fifth District affirmed Judge Doyle, the hospital came up to this Court
urging that it review the exemption under a less demanding standard. As summarized
by the Court, the hospital wanted to break the standard into three parts. It argued the
exemption should be sustained because the exemption of a strategic plan in its entirety
“[i] was adopted for a stated public purpose [ii] in response to a specified public
necessity and [iii] was drafted as narrowly as possible to achieve that purpose.” Halifax
at 569.
5Memorial III followed after this court’s decisions in Memorial I and MemorialHospital--West Volusia, Inc. v. News-Journal Corp., 784 So. 2d 438 (Fla. 2001)(“Memorial II”). In Memorial III, Judge Will held both Ch. 98-330, Laws of Florida(1998) (codified at § 395.3036) and Ch. 99-356, § 6, Laws of Florida (1999) (codifiedat § 155.40(6) & (7)) facially unconstitutional under Art. I, § 24(c), Fla. Const. Thisjudgment was not appealed.
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The Court rejected this argument. It held, “We agree with the courts below that
the statutory exemption does not meet the exacting constitutional standard of article I,
section 24(c), of specificity as to stated public necessity and limited breadth to
accomplish that purpose and is therefore facially unconstitutional.” Id. Quoting Judge
Doyle’s analysis with approval, the Court said:
[b]y creating an exemption for any and all discussion of thestrategic plan, the legislature has created a categoricalexemption which reaches far more information thannecessary to accomplish the purpose of the exemption. Alldiscussion of strategic plans is made secret solely to protectthat part of the discussion which pertains to criticalconfidential information. This is facial overbreadth.
Id. (quoting Halifax Final Judgment at 1781).
The simple but powerful lesson of Halifax is that the Court will enforce the
constitutional standard according to its terms. As Judge Joseph G. Will explained in a
case he decided a few months after Earnhardt I, “[T]he Supreme Court established
a standard of strict enforcement of the plain language of the constitutional text.”
Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 30 Med. L.
Rptr. 1300, 2002 WL 390687 *3 (Fla. 7th Jud. Cir. 2002) (“Memorial III”) (A-5).5
In the district court, the proponents trivialized Halifax (which may have led the
court into error). They argued Halifax turned on the fact that the terms used in the
exemption were vague, indefinite, and undefined. The invalidity of that exemption was
a simple matter of legislative vagueness, so they argued, whereas here the exemption
is valid because it is defined in concrete terms. As the proponents would construe
6Although the analysis by which the Act is shown to be constitutional can andwill be done independently of the wrong reasoning deployed by the district court,Amici believe that critical review of the court’s analysis provides useful ground forcontrast in discussing how the constitutional standard works under Halifax. Inperforming this analysis, Amici mean no disrespect to the panel nor to the learned andarticulate author of the opinion.
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Halifax, an exemption need only be “defined” in order to be valid. There is no merit
in this argument.
Halifax is not a void-for-vagueness case. This Court understood the meaning
of its terms, and struck down the exemptions because it understood that the law
“created a categorical exemption which reaches far more information than necessary
to accomplish the purpose of the exemption.” Id. at 569. An exemption that is broader
than necessary to comport with its justification is unconstitutional under Halifax no
matter how precisely the Legislature defines this overbreadth.
C. THE DISTRICT COURT MISCONSTRUED THE CONSTITUTIONALS T A N D A R D A N D M I S A P P L I E D T H E P R E S U M P T I O N O FCONSTITUTIONALITY.
The district court further erred by failing to adhere to the plain constitutional
standard and by misapplying the doctrine of presumed correctness of legislation.6
The court applied the wrong standard
Writing in the absence of Halifax, the court confused the constitutional standard
with the OGSRA guideline. It began by observing:
Both the Florida Constitution and the Public Records Actallow for the creation of exemptions to the Act by theLegislature, provided the newly enacted exemption 1) servesan identifiable public purpose and 2) is no broader thannecessary to meet that public purpose.
Earnhardt II at *2 (citing § 119.15(4)(b) of the OGSRA and Art. I, § 24(c), Fla.
Const., as if equivalent).
This seriously mistakes the constitutional standard. The plain language of the
Constitution requires the Legislature to “state with specificity the public necessity
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justifying the exemption.” Art. I, § 24(c), Fla. Const. The mere fact that the Legislature
can identify a public purpose for creating an exemption falls far short of this standard.
The Constitution further requires that the exemption be limited in breadth by this
specifically stated public necessity, not merely by “an identifiable public purpose.”
The district court shied away from this constitutional standard. In the first
paragraph of the section headed “The Specificity Requirement,” the court quoted the
first prong of the standard, but nowhere did it quote the second prong of the standard,
and never did it quote the full text of the standard itself. Whenever the court used the
phrase “no broader than necessary,” it was quoting the OGSRA standard and
measuring the permissible breadth of the exemption against the “identifiable public
purpose.”
The district court strayed far from its duty to give effect to the plain meaning of
the constitutional standard. With respect, it is also the advocate’s duty to point to the
profound constitutional error underlying the court’s observation that “the Public
Records Act allow[s] for the creation of exemptions to the Act.” Id. The OGSRA
neither allows nor prohibits any subsequent act of the Legislature. See Neu v. Miami
Herald Pub. Co., 426 So. 2d 821, 824 (Fla. 1985) (holding Sunshine Law could not
prohibit future exemptions).
The court asked the wrong question.
The fault line in the court’s analysis showed as soon as it said the issue was
“whether the [Act] is overly broad and therefore unconstitutional.” Earnhardt II at *2.
On the contrary, the issue is whether the exemption is “broader than necessary to
accomplish the stated purpose of the act.” Art. I, § 24(c), Fla. Const. The district court
never answered the relevant question: Overly broad compared to what?
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Having asked the wrong question, the court inevitably reached the wrong answer:
We find the scope of [the Act] specific and narrow: itapplies only to autopsy photographs and audio and videorecordings of the autopsy. It does not apply to other recordsof the autopsy such as the written autopsy report and,therefore, those materials remain unrestricted public records.
Earnhardt II at * 3.
This measured the breadth of the exemption against no standard whatever. Thus
the Court did not conclude, as required by the absent constitutional standard, that the
exemption was “no broader than necessary to accomplish the specific purpose of the
act.” Art. I, § 24(c), Fla. Const.
In truth, the district court could not have measured the breadth of the exemption
against the specific scope of the exemption because it never determined that scope.
Instead, the court addressed only what it called the “specificity requirement.”
Earnhardt II at *3. The court said, “The legislative findings detail the graphic and often
gruesome nature of such autopsy photographs and the trauma and emotional injury the
immediate family of the deceased would likely suffer if these records were disclosed
and disseminated to the public.” Id. Although the court said these findings were
specific, it never came to grips with the question of what, specifically, the Act stated
as the “public necessity justifying the exemption.” Art. I, § 24(c), Fla. Const.
It is easy to see the error. The district court applied that very standard which this
Court rejected in Halifax. Id. at 569. Recall the hospital had urged that an exemption
need only be “[i] adopted for a stated public purpose [ii] in response to a specified
public necessity and . . . [iii] drafted as narrowly as possible to achieve that purpose.”
Id. Amici will call this rejected standard the “NOT-Halifax” standard. As if NOT-
Halifax were, indeed, the standard, the district court reasoned the Act was
constitutional by ignoring the requirement that the act be tailored to meet a public
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necessity. Following the argument rejected in Halifax, the district reasoned the Act
was constitutional on the rationale depicted in Table 2.
Table 2. The NOT-Halifax Analysis Employed by theDistrict Court.
1 The Act was adopted for the PUBLIC PURPOSE of sealingautopsy photographs
2 in response to the specified public necessity of preventingthat emotional harm which some instances of access todisturbing autopsy photographs cause to some people,and
3 it is drafted no broader than necessary to meet thisPUBLIC PURPOSE because it seals only autopsyphotographs
The district court erroneously resurrected NOT-Halifax at the same time that it
unceremoniously buried Halifax.
The Constitution requires not merely that an exemption serve a “public purpose”
but that it be justified and limited by a “public necessity.” A public necessity is a
stronger interest than a mere public purpose. A necessity is an “indispensable thing,
pressure of circumstances, an imperative need or a constraint or compulsion regarded
as a natural law governing all human action.” The Pocket Oxford Dictionary of Current
English, Oxford University Press 1996. The legal phrase public necessity signifies a
high order of state interest. Among other things, a public necessity is a state interest of
sufficient weight to justify a change in the common law, In re T.A.C.P., 609 So. 2d 588
(Fla. 1992), to override the constitutional right of access to the courts, Kluger v. White,
281 So. 2d 1 (Fla. 1973), or to justify taking private property. E.g., Dade County v.
Paxson, 270 So. 2d 455 (Fla. 3d DCA 1972).
In requiring that an exemption be justified by a public necessity and that it then
be limited to that necessity, the Constitution articulates a well-understood legal concept
of necessity. Compare People ex. rel. Trombley v. Humphrey, 23 Mich. 471, 1871 WL
7Amici do not argue that the standard of public necessity in condemnation casesis the same as that under the textual standard but only that Justice Cooley aptly statesa universal legal principle: that which is justified by a “necessity” is perforce alsolimited by that necessity. An exemption which is predicated on a public necessity mustbe both justified and limited by the necessity.
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5625 *2 (Mich. 1871) (Cooley, J.) (explaining that the power of eminent domain “has
its foundation in the imperative law of necessity [and] being thus found to rest upon
necessity, the power to appropriate in any case must be justified and limited by the
necessity”). The present standard is similar in that the exemption must be justified and
limited by the necessity that justifies overriding the right of access.7
The court misapplied the doctrine of presumed constitutionality.
In the course of applying its NOT-Halifax standard, the district court misapplied
the doctrine of presumed constitutionality of legislation. It is true that an act of the
Legislature is presumed to be constitutional, but it is also true that when a rightholder
shows that a statute intrudes on a fundamental right, this “shifts the burden of proof to
the state to justify [the] intrusion on [on the fundamental right].” Winfield v. Division
of Pari-Mutuel Wagering, 477 So. 2d 544, 547 (Fla. 1985) (holding right of privacy
under Art. I, § 23 is fundamental). The court failed to test the Act under this standard.
There should be no question that the rights reserved by Art. I, § 24, Fla. Const.,
are fundamental rights because these rights are enumerated in the Declaration of Rights.
This Court quite recently explained that “a fundamental right . . . is, a right which has
its source in, and is explicitly guaranteed by, the federal and/or Florida constitutions.”
T.M. v. State, 784 So. 2d 442, 444, n. 1 (Fla. 2001). See also Mizrahi v. North Miami
Medical Center, Ltd., 712 So. 2d 826, 828, n.4 (Fla. 3d DCA 1998) (holding that [a]
fundamental right is one flowing from either the federal or Florida constitution”). The
special significance of enumerated rights was recently underscored by this Court in
Mitchell v. Moore, 786 So. 2d 521, 527 (Fla. 2001), when it said that an enumerated
8The form of this fallacy is: If p, then q. Not p. Therefore, not q. As here, thisfallacy usually involves confusion about the direction of a conditional relation. Forexample, “If it is raining, the streets are wet. It is not raining. Therefore, the streets arenot wet.” Making the same mistake, the proponents’ argue: If a right is protected bystrict scrutiny (p), then it is a fundamental right (q). This right is not protected by strictscrutiny, (not p) hence it is not a fundamental right (not q). See Audi (ed.) CambridgeDictionary of Philosophy (1995) at 271.
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right “deserves more protection than those rights found only by implication.” Mitchell
approved Lloyd v. Farkash, 476 So. 2d 305, 307 (Fla. 1st DCA 1985), which held that
“[w]here, as here, the right is one made express by the constitution, the courts have an
even greater duty to protect the right than where the right is one found by implication.”
Therefore, the right of access deserves heightened protection. Distracted by the
unique textual standard of review in arguing the contrary, however, the proponents have
fallen prey to fallacy. They say the right of access is not a fundamental right because
the Constitution allows the Legislature to override it subject to a textual standard that
is not equivalent to strict scrutiny. This confuses a consequence for a condition. Under
the jurisprudence of this Court, if a right is a fundamental right, then it is protected by
the strict scrutiny standard. Inverting this reasoning, the proponents say that if the right
is protected by strict scrutiny, then it is a fundamental right. This leads the proponents
into the fallacy of “denying the antecedent.”8
If there were no textual standard, to be sure, the Court would apply the strict
scrutiny standard. “In the strict scrutiny test, the method for remedying the asserted
malady must be strictly tailored to remedy the problem in the most effective way and
must not restrict a person's rights any more than absolutely necessary. Further, in strict
scrutiny cases, there must be a compelling governmental interest which the statute
9The proponents also argue that because the Constitution grants a textual powerto override the right of access, the right is not fundamental, but that argument ignoresthe doctrine that no fundamental right is absolute. See Shaktman v. State, 553 So. 2d148 (Fla. 1989). The right of access is not set apart from other fundamental rights bythe fact that it may be subordinated to competing interests under an exacting standard.
10The reasoning by which the district court sustained the retroactivity of theexemption under the due process clause is infected with this failure to recognize thefundamental nature of the right. A fundamental right never falls into the lesser categorythe court characterized as a “public right.” Compare State v. Lavazzoli, 434 So. 2d321 (Fla. 1983).
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purports to accomplish.” Mitchell at 527-28. In lieu of that doctrine, the constitution
here spells out the test for validity of an exemption.9
It is therefore an error of law and a fallacy of reasoning for the proponents to
argue that a fundamental right is only such a right as is protected by strict scrutiny. The
right of access is fundamental because it is enumerated in the Declaration of Rights. It
is protected by the textual standard, and not by judicial strict scrutiny, because that is
what the Constitution says.10
Amici do not contend that the textual standard is equivalent to the judicial
doctrine of strict scrutiny. Nevertheless, the Governor argued at length on brief below
that the textual standard does not require strict scrutiny of exemptions. Of course, the
standard is not strict scrutiny, but neither is it rational basis. The unique standard is
spelled out in the text of the Constitution.
Still, the sui generis textual standard is a close analog to strict scrutiny. It differs
only in that a “public necessity justifying an exemption” is not equivalent to “a
compelling governmental interest.” Both trial judges who have addressed the issue have
recognized this nuance. Judge Doyle said the public necessity justifying the exemption
“must logically or rationally relate to the exemption in such manner as to justify the
creation of an exception to the constitutional right of access.” Halifax Final Judgment,
25 Med. L. Rptr. at 1779-80. Judge Will said the standard requires the Legislature to
11See generally Holley v. Adams, 238 So. 2d 401 (Fla. 1970) (explaining that“[if] an act violates expressly or clearly implied mandates of the Constitution, the actmust fall, . . . because of the dominant force of the Constitution, an authority superiorto both the Legislature and the Judiciary”) (citing Amos v. Mathews, 99 Fla. 1, 126 So.308 (1930)). See also Florida League of Cities v. Smith, 607 So. 2d 397, 400 (Fla.1992) (“[W]hen constitutional language is precise, its exact letter must be enforced andextrinsic guides to construction are not allowed to defeat the plain meaning of thelanguage”); State v. Butler, 69 So. 771, 776 (Fla. 1915) (holding “the provisionsexpressed and implied of the Constitution are superior to legislative enactments, andthe Constitution must prevail where a statute conflicts therewith”); Crawford v.Gilchrist, 59 So. 963, 968 (Fla. 1912) (holding that “[e]very word . . . should be givenits intended meaning and effect, and essential provisions of a Constitution are to beregarded as mandatory”).
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“explain why revelation of that information would harm an identifiable interest of
sufficient gravity to justify overriding the public right of access.” Memorial III at *9.
The textual standard is a strict “goal-method test,” as this Court used that term
in Mitchell, because it requires the Legislature to identify the “asserted malady” and
then requires “the method for remedying the asserted malady [to] be strictly tailored to
remedy the problem in the most effective way and . . . not [to] restrict a person’s rights
any more than absolutely necessary.” Id. To fulfill its duty to afford heightened
protection to the enumerated right of access, the Court need only follow the plain
meaning of the constitution, which it always does when the constitution is clear and
specific.11
That is what Halifax did when it strictly enforced the “exacting” textual
standard. As Judge Will correctly explained:
The [Halifax] standard of review recognizes that the rightssecured by section 24 must be respected as fundamentalrights to be protected by strict enforcement of the uniquetextual standard of review. Rights reserved in the declarationof rights are fundamental rights “guaranteed to eachFloridian against governmental intrusion.” Traylor v. State,596 So. 2d 957, 964 (Fla.1992). Generally, constitutionaldoctrine protects fundamental rights by requiring strictscrutiny of infringing governmental acts. See, e.g., Chiles v.State Employees Attorneys Guild, 734 So. 2d 1030, 1033(Fla.1999). Here, the constitution itself protects the right ofaccess by imposing a strict limitation on the legislative power
12To deal with an obvious question, Judge Will’s reasoning in Earnhardt I is notso inconsistent with his reasoning in Memorial III as may first appear. He sustainedthis Act because he concluded that a privacy interest justified the creation of a“presumptively private” class of records. In effect, Judge Will practiced ad hocjudicial balancing between privacy and public access by disregarding the narrowtailoring standard in favor of the presumptive privacy of the records in question. Hisreasoning in Memorial III is unaffected by the weight he erroneously assigned to theprivacy interest in Earnhardt I. As this Court recently reiterated, the Legislature mustbalance the public interest in disclosural privacy against the right of access by creatingproperly justified and tailored exemptions. Alterra Healthcare Corp. v. Estate ofShelley, 2002 WL 31026990 *2, n. 4 (Fla. 2002). Judge Will’s error in Earnhardtconsisted largely in relieving the Legislature of its narrow tailoring responsibility in theservice of the privacy interest.
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to enact exemptions. . . . Halifax makes clear that thisis anexacting textual standard of review which must be strictlyenforced.
Id. at *5.12
When it overlooked Halifax, the district court departed from this standard of
strict enforcement of the plain meaning. It played loose with the wording of the
constitutional text by conflating it with the OGSRA standard, and it substituted undue
reliance on the doctrine of presumed correctness for patient review of the face of the
Act against the plain meaning of the constitutional standard.
It is significant that this Court never once mentioned the doctrine of presumed
correctness in Halifax. It measured the breadth of the exemption against the scope of
the justification, applied the textual standard, and struck down the exemption. That is
not because the Court forgot the presumption (which was urged upon it by the
hospital) but because the presumption has no application in the facial review of
exemptions.
The constitution places the onus of justifying the exemption squarely on the
Legislature, and Halifax left the onus where the people put it. The act creating an
exemption must speak for itself, and the courts must enforce the constitution by
reviewing the act on its face to determine whether it complies with the express
13Although the question is not raised here, the Court likely would hold that aconstitutionally specific statement of public necessity is presumed to be correct andsubject to review under the clearly erroneous standard. University of Miami v.Echarte, 618 So. 2d 189, 196 (Fla. 1993). This is not equivalent to a presumption thatthe Act satisfies the textual standard in all respects. Nor does it refute the fundamentalstature of the right. Compare Mitchell (explaining that the standard of review underKluger v. White, 281 So. 2d 1 (Fla. 1973), is strict scrutiny even though Echarte hadalready held in a Kluger case that express legislative findings are correct unless thechallenger shows they are clearly erroneous).
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conditions of validity. The court must actually find from the face of the act that it states
with specificity a public necessity justifying the exemption and tailors the exemption no
broader than necessary to accomplish that stated purpose. The presumption of
constitutionality cannot substitute for review of the face of the act.13
The strict enforcement standard adopted by Halifax is mandated by the unique
constitutional text. It is true, as the Governor argued below, that the Legislature sets
public policy, but it is not true that the creation of exemptions involves traditional
legislative policy-making. The self-executing provisions of subsections (a) and (b) of
the amendment abrogated the inherent legislative power to grant or withhold access to
public records. In its place, the amendment expressly granted the limited power to
create exemptions enumerated in Art. I, § 24(c). This is now the exclusive source of
legislative authority to override these self-executing constitutional rights.
Judge Will explained why this constitutional text is unique when he said with
characteristic candor:
The Sunshine Amendment did not modify, adjust, orfine-tune the inherent legislative power to alter the right ofaccess. It abolished the traditional legislative role andcreated a unique, and somewhat baffling, relationship. Thelegislative power to provide exemptions is now derivedexclusively from the express grant of section 24(c). Inadopting their constitution, the people of Florida elected toseverely limit this grant of authority.
Memorial III at *9 (emphasis in original).
14Finally, the district court ventured in dictum that a constitutional right ofprivacy would have justified judicial suppression of these records if the Legislature hadnot acted. Earnhardt II at *11. The court cited no authority for this dictum. On thecontrary, there is no constitutional privacy interest in a nonexempt public record inFlorida. See, e.g., Alterra; Privacy & Electronic Access to Court Records: Reportand Recommendations of the Judicial Management Council at pages 17-20 (citingMichel v. Douglas, 464 So. 2d 545 (Fla. 1985); Forsberg v. Housing Authority, 455So. 2d 373 (Fla. 1984); Times Pub. Co. v. A.J., 626 So. 2d 1314 (Fla. 1993); Wallacev. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997)). Available at:<http://www.flcourts.org/pubinfo/summaries/briefs/02/02-659/Filed_12-17-2001_ReportRecommendations.pdf>.
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This forceful but simple lesson of Halifax was overlooked in Earnhardt II.
There is no longer an inherent power to create exemptions but only an enumerated and
limited power under section 24(c). When the district court substituted a presumption
of correctness for careful review of act on its face against the clear textual standard, it
abdicated its duty to apply the Constitution as the people have written it. This Court
should correct that error.14
III. THE ACT IS BROADER THAN NECESSARY TO ACCOMPLISH ITSPURPOSE OF PROTECTING THE IMMEDIATE FAMILY OF THEDECEASED FROM EMOTIONAL DISTRESS.
A. THE ACT WILL NOT STAND UP TO SCRUTINY UNDER THE HALIFAXANALYSIS.
The application of the constitutional standard to the face of the Act begins by
posing the three Halifax questions. Does the Act state with specificity a public
necessity justifying an exemption, and if so what specifically does it justify? How broad
is the exemption that the Act carves out of the constitutional right of access? How does
the breadth of the exemption compare with the scope of the justification? When so
tested, the Act is readily shown to be overbroad. As with Halifax, “this is facial
overbreadth.” Id. at 569.
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B. THE ACT SPECIFIES THE PUBLIC NECESSITY OF PROTECTING THEIMMEDIATE FAMILY FROM EMOTIONAL HARM FROM TRAUMATICPUBLIC ACCESS TO DISTURBING AUTOPSY IMAGES .
The first step in analyzing the exemption is the determination of whether and to
what extent the Act states with specificity a public necessity justifying the exemption.
The question is not whether the Act merely identifies a public purpose that would be
served by the exemption, nor whether the Act makes one or more specific statements.
The question is more particular. Exactly (specifically) what does the Act state with
specificity that counts as a rationale for a correlative exemption from the right of
access?
This Act follows the model of the Halifax exemption. Although it contains a
core statement specifying a rationale for an exemption, it wraps this core with sweeping
but contingent predictive judgments that are neither specific nor justifying. Nevertheless,
when the statement is pared to this specific core, as Judge Doyle did with the Halifax
statement, there is no mistaking the specific rationale.
The Act specifies a public necessity for exempting disturbing autopsy
photographs from those instances of inspection that would inflict severe emotional
distress on the surviving members of the immediate family of the deceased. Act, § 2,
Sentences 2-5. Compare Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA
1991).
This plain meaning of Section 2 of the Act is easy to see. The Act recites that
autopsy photographs “depict . . . the deceased in graphic and disturbingoften
fashion,” (Sentence 2, A-9), that “ photographs . . . depict the deceased nude,such may
bruised, bloodied, broken, with bullet or other wounds, cut open, dismembered, or
decapitated,” (Sentence 3, A-9), that “as ” the photographs “ result in traumasuch could
. . . to the immediate family of the deceased as well as to the memory of the
deceased.” Sentence 4 (A-9) (emphasis added).
1 5 S e e M e r r i a m - W e b s t e r C o l l e g i a t e D i c t i o n a r y a t<http://www.m-w.com/home.htm >. See also Cambridge International Dictionary ofEnglish <http://dictionary.cambridge.org>. (As an auxiliary verb meaning “bepossible,” could “expresses possibility, esp. slight or uncertain possibility.”)
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Table 3. Excerpts With Emphasis from Chapter2001-1, § 2, Laws of Florida
Sen.
2.
The Legislature finds that photographs or video or audiorecordings of an autopsy depict or describe the deceased ingraphic and disturbing fashion often
Sen.
3.
photographs or video or audio recordsing depict orSuch maydescribe the deceased nude, bruised, bloodied, broken, withbullet or other wounds, cut open, dismembered, or decapitated.
Sen.
4.
As , photographs or video or audio recordings of ansuchautopsy are highly sensitive depictions of the deceased which,if heard, viewed, copied or publicized, result in trauma,couldsorrow, humiliation, or emotional injury to the immediatefamily of the deceased as well as to the memory of thedeceased.
Sen.
5.
The Legislature notes that the existence of the World WideWeb and the proliferation of personal computers throughoutthe world encourages and promotes the wide dissemination ofphotographs and video and audio recordings 24 hours a dayand that widespread unauthorized dissemination of autopsyphotographs and video recordings subject thewouldimmediate family of the deceased to continuous injury.
By plain meaning, these statements stop far short of finding that all inspection
and copying of all autopsy photographs always traumatizes the immediate family. Often
means many times or frequently, and so it includes “not always.” Such means of the
character, quality, or extent previously indicated. In Sentence 3, such is a pronominal
reference to the statement in Sentence 2 that autopsy photographs show the deceased
in “often disturbing fashion.” In Sentence 4, such is a pronominal reference to the
description in Sentence 3 of what are “disturbing photographs.” May indicates
possibility or probability but not certainty and thus includes “may not.” Could also
indicates possibility not certainty and includes “could not.”15
16Id.
17Based not on the findings in the Act but on testimony admitted for anotherpurpose at the trial, Judge Will found the blanket ban on all access justified becausethe witnesses testified that any thought of access was distressing. This has no bearingon the facial constitutionality of the Act. It must stand or fall on the finding stated onthe face of the Act. On its face, the exemption is overbroad for precisely the reasonthat the trial judge found it necessary to try to save it with the irrelevant, subjective, butemotionally compelling testimony of the witnesses in this case.
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This is not mere play with words. These qualified assertions say just what the
Legislature meant to say. Like Teresa Earnhardt when she filed this suit, the Legislature
was motivated by the specific concern that emotional trauma to the immediate family
would be caused by traumatic public display of disturbing autopsy photographs. The
Senate Staff Analysis and Economic Impact Statement, CS/CS/SB 1356 (March 21,
2001), pp. 2-3 (“Senate Staff Analysis”) reported that staff members had “performed
searches on the Internet to determine the likelihood of publication of autopsy
photographs on the world wide web.” The staff concluded that “it would appear likely
that autopsy photographs of Mr. Earnhardt, if available, would also be published on
[certain Internet sites].” This research formed the basis for the statement of public
necessity for the exemption.
Consistent with this research, the Legislature made only one specific finding. It
said, “widespread unauthorized dissemination of autopsy photographs . . . would
subject the immediate family of the deceased to continuous injury.” Act, § 2,
Sentence 5. Would means consequently or certainly and is used in the conclusion of
a conditional sentence, i.e., if disturbing pictures are published on the Internet, then
harm would result to the immediate family.16
Thus the only rationale stated with specificity by the Legislature is that the
exemption is necessary to protect the immediate family from emotional trauma caused
by widespread dissemination of disturbing autopsy photographs.17 Although there is
room to question whether the specific finding of the Act justifies anything more than
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preventing Internet publication, the exemption is overbroad on any reading. For
purposes of this analysis, therefore, the findings will be read sympathetically in light of
the Minneola rationale to specify a public necessity to prevent any exercise of the right
of access to disturbing autopsy photographs that would inflict severe emotional distress
on the immediate family.
This could include disrespectful treatment of the photographs within the
examiner’s office, such as that reported to have occurred within the Minneola police
department, exploitative publication of the photographs on the Internet, such as those
which appear on the websites visited by the Senate staffers, or other traumatic
publication in any medium. The rationale for suppressing access to the photographs is
to prevent that emotional trauma to the immediate family which would result from any
such traumatic public display.
Even when the statement of public necessity is construed in this sympathetic
way, however, it does not justify the exemption of all autopsy photographs from all
manner of public access whatsoever. It justifies a bar only on some instances of access
to some autopsy photographs of some deceased persons.
Each some represents one of three conditions that must be satisfied in order for
an instance of public access to fit within the scope of the justification. First, the
autopsy photograph must depict the deceased in a “disturbing fashion,” i.e., “nude,
bruised, bloodied, broken, with bullet or other wounds, cut open, dismembered, or
decapitated.” Sentence 3. Second, the manner of exercise of the right of access must
be such as would inflict emotional trauma on the immediate family. Sentences 4 & 5.
Third, members of the “immediate family” of the deceased must be living and capable
of sensing the trauma. Sentences 4 & 5. If, but only if, all three conditions are satisfied,
then the exercise of the public right of access falls within the purview of the
justification. On the other hand, if the photograph is not disturbing, if the manner of
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exercising the right of access is not such as to inflict trauma, or if no member of the
immediate family is then living and capable of sensing the outrage, then the exercise of
the right of access does not fall within the scope of the justification for the exemption.
C. THE ACT RENDERS ALL AUTOPSY PHOTOGRAPHS ALWAYS EXEMPT.
The second step in the Halifax analysis reviews the exemption to determine its
breadth. The Act provides that “[a] photograph or video or audio recording of an
autopsy in the custody of the medical examiner is confidential and exempt . . . .” Act,
§ 1(1).
Here again, the Act resembles the Halifax exemption. It creates a categorical
exemption applicable to all photographs of an autopsy, and it bars all public access to
these records. It is not tailored to fit any particular measure but extends to all autopsy
photographs.
D. THE BREADTH OF THE EXEMPTION SUBSTANTIALLY EXCEEDS THESCOPE OF THE JUSTIFICATION.
The third step of the Halifax analysis compares the scope of the justification
with the breadth of the exemption. On its face, the exemption is overbroad. It bars all
public access to every autopsy photograph ever recorded in the history of Florida and
still in the hands of any medical examiner. Yet it justifies an exemption barring public
access only to (i) “disturbing” photographs (ii) under circumstances that would inflict
“trauma” on (iii) “the immediate family” of a deceased person who is survived by
“immediate family” at the time of the access. See Figure 1.
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Figure 1. The concentric categories of overbreadth in theexemption.
1. All instances of public accessto all autopsy photographs.
------2. All instances of access todisturbing autopsyphotographs.
------3. All traumatic instances ofaccess to disturbing autopsyphotographs.
-----4. All traumatic instances ofaccess to disturbing autopsyphotographs of deceasedpersons who are survived bymembers of theimmediate family at thetime of access.
The outer ring (Category 1) represents the breadth of the exemption, which is the
category of all possible instances of the exercise of the right of public access to all
autopsy photographs of all persons who ever have died or ever will die. The inner ring
(Category 4) represents the scope of the justification, which is the category of all
possible traumatic instances of access to disturbing photographs of a decedent then
survived by immediate family. The three necessary conditions of the justification are
represented by concentric rings because each must be present in order to justify the
exemption.
This illustrates the internal logic of the Halifax analysis of the Act but makes no
effort to measure the relative size of the categories. Nevertheless, careful analysis of
each category of the justification will show the breadth of the exemption is substantially
greater than the scope of the justification.
18See <http://www.themaskstore.com/ForTheHomeMasks.htm> (offering deathmasks of Napoleon and Beethoven on sale at an art boutique in New Orleans). Theembalmed body of President Abraham Lincoln was exhibited at a series of viewingsas his funeral train crossed the country to Illinois. Reporting on a viewing in Chicagoeighteen days after his death, the Chicago Daily Tribune of May 2, 1865, said: “ThePresident was neatly dressed in a suit of black. His face was somewhat discolored, butnot more than we remember to have seen in cases of gunshot wounds. Otherwise hiscountenance exhibited an extremely natural and life-like appearance, more as if calmlyslumbering, than in the cold embrace of death. It did not require a vivid imagination todiscover a placid smile resting upon that marble face.” quoted in Caroline R. Heath,Four Days in May: Lincoln Returns to Springfield (Springfield, Ill.: Sangamon CountyHistorical Society and Illinois State Historical Society, 1965).
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1. Not all autopsy photographs are inherently “disturbing.”
The first condition of the justification is that the autopsy photographs be
“disturbing,” as described in Sentence 3 of Section 2 of the Act. (A-9). There is no
dispute that autopsy photographs “often” fit within this category, but often means not
always.
Not all autopsy photographs fall within the description of “disturbing”
photographs. An autopsy may depict the deceased’s face as if he or she were sleeping,
resting in a casket, or portrayed in a death mask. The image of a deceased person is not
inherently distressing. Our society clings to the custom of the open-casket funerals and
viewings, and death masks are considered objets d’ art.18 It is not necessary that the
opponents “prove” this point because the Act does not find that all autopsy
photographs are always “disturbing.”
Still, it is easy to imagine reasonable cases of access to nondisturbing autopsy
photographs. Assume that an unidentified drowning victim washed ashore on a Florida
beach and the examiner had photographed the victim’s intact face. The exemption
would stand in the way of publishing this “mug shot” for the purpose of identifying the
victim even if the picture showed the peaceful countenance of a sleeping person.
Contrariwise, an autopsy photograph that did not identify the deceased would not
“depict” the deceased in a disturbing fashion. An image may show a specific wound
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for academic or didactic purposes, or it may show a discrete segment of the body for
other purposes.
Below, the Solicitor General contended that the Legislature justified the
exemption on the ground that all autopsy photographs are “inherently morbid.”
“Morbid” means associated with disease and has come to signify something
“abnormally susceptible to or characterized by gloomy or unwholesome feelings.” See
Merriam-Webster Collegiate Dictionary at <http://www.m-w.com/home.htm >. There
is no merit in the Solicitor’s argument because the Legislature did not find that autopsy
photographs are “inherently morbid,” and it did not justify the exemption on the ground
that these photographs are categorically “gloomy.” On the contrary, the Legislature
justified the Act as necessary to protect the immediate family from the trauma of
widespread dissemination of disturbing images.
It is appalling to imagine seeing a photograph of one’s father “butt naked and
gutted like a deer” as Neil Bonnet’s daughter so vividly testified, but the objective truth
is that the Legislature did not find (and clearly would have erred if it had so found) that
every autopsy photograph presents such a shocking prospect and falls within the Act’s
description of disturbing images. Yet the Act suppresses the mug shot of the drowning
victim or the anonymous anatomical detail at the same time that it suppresses such
disturbing images. It is overbroad because it does not justify barring access to any
autopsy photograph that is not within the description of “disturbing” in Sentence 2.
2. Not all instances of public access will result in emotionaltrauma to surviving members of the immediate family.
The Legislature did not find that all instances of public access would cause
emotional trauma to the deceased but only that such access could (or could not)
“result in trauma, sorrow, humiliation, or emotional injury to the immediate family of the
deceased.” Act, § 2, Sentence 2. Yet the exemption of all photographs from all public
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access is not limited to those cases where emotional distress would result from the
access. In attacking the overbreadth of the exemption along this dimension, the
challenger need not show instances of inspection that do not disturb the immediate
family but rather the Legislature must justify the breadth of the exemption with the
specific finding that all prohibited instances of inspection would create this distress. It
did not make that finding. Though it found that any form of access could (or could
not) result in harm, it specifically found only that the harm certainly would (without
exception) follow from widespread dissemination.
The category of instances of access that would not inflict emotional distress on
surviving members of the immediate family is vast. Autopsy photographs are used by
academics in the preparation of medical and criminal investigative texts and materials,
scientists studying health and safety issues, authors writing fiction and nonfiction,
insurance investigators handling claims, journalists reporting on governmental and non-
governmental matters, medical examiners rendering second opinions, and physicians
following up on their treatment. These uses normally involve both inspection and
copying of the records without harm to the emotions of the immediate family. Copies
of autopsy photographs are used to communicate among medical professionals, in
medical and forensic textbooks, to enable private citizens remote from the office of the
medical examiner to inspect the records for purposes other than traumatic publication,
and for journalistic purposes other than republication. The specified concern with
emotionally distressing publication does not form the ground for banning such uses of
these public records. Similarly, the Act prevents a medical examiner from copying the
autopsy photographs or displaying them to medical colleagues for professional
reasons. The Senate staff itself criticized this overbreadth. Senate Staff Analysis at p.
9.
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The obvious fact that such uses entail no emotional distress to the surviving
members of the immediate family no doubt explains why the Legislature qualified its
finding by saying only that access to autopsy photographs could (or could not) result
in trauma to the immediate family. Thus qualified, the statement is irrefutable.
Conversely, the unqualified finding that all instances of access to all autopsy
photographs would always inflict trauma on members of the immediate family would
have been clearly erroneous. Since the Legislature made no such universal finding, it is
only necessary to compare its qualified finding with its unqualified exemption.
3. Not every decedent is survived by members of his or herimmediate family at the time access is barred by theexemption.
The specific purpose of the Act is to protect the surviving members of the
immediate family from emotional trauma caused by harmful instances of public access.
Yet its most extravagant dimension of overbreadth derives from its failure to confine
the exemption to only those instances where access is sought when a decedent is
survived by members of the immediate family of the deceased.
The settled meaning of the legal term “immediate family” is “[a] person's parents,
spouse, children, and siblings.” Alonso v. State, 2002 WL 1563842 *2 n.2 (Fla. 3d
DCA 2002) quoting Black's Law Dictionary 620 (7th ed.1999) and holding that a
cousin who served as father figure was not a member of the immediate family for
purposes of § 918.16(1)).
The Act stretches back to the earliest autopsy photographs recorded and
continues indefinitely into the future, sweeping under its blanket enormous numbers of
autopsy photographs of persons who have no immediate family surviving. Since the
exemption applies whether or not a member of the immediate family is surviving, its
temporal dimension is overbroad in three substantial and material respects.
19For example, if President Abraham Lincoln had been assassinated in Floridaand if Matthew Brady had photographed his autopsy for the local examiner, thephotographs would now be exempt under this Act even though President Lincoln’simmediate family have long since passed on.
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First, the Act applies retroactively to all autopsy photographs that ever have been
recorded and thus applies to a vast historical archive of photographs of persons who
are no longer survived by immediate family members. The utterly useless historical
overbreadth of the Act along this dimension is breathtaking.19
Second, the Act applies to autopsy photographs of a person who dies in the
present even though the person is not survived by immediate family. As Judge Will
observed from the bench, his decision applied not only to Dale Earnhardt but also to
the “man who slept under the bridge.” It also applies to the childless widow or widower
who slept in the nursing home. Even though such people are not survived by immediate
family, their autopsy photographs are exempt.
Third, just as the exemption reaches indefinitely into the past, it continues
indefinitely into the future. There is no justification for the continuation of the exemption
after the last surviving member of the immediate family of the deceased has passed
away.
In Halifax DCA, the court held that the Legislature must justify the duration of
an exemption as well as its substantive scope and that the continuation of an exemption
after the expiration of its justifying circumstances constitutes overbreadth. Id. at 436.
Here, the Legislature has not justified the unlimited retrospective and prospective
temporal scope of the exemption.
The proponents reply that the expiration of the Act in five years pursuant to the
customary provisions of the OGSRA satisfies this requirement, but this weak response
misses the point. The Legislature has not justified the continuation of the exemption for
even one day after the last member of the immediate family passes away. No finding
20This attack on the retrospective dimension of overbreadth rests on the textualstandard of Section 24(c) independently of the distinct argument that the due processclause forbids any retroactivity whatsoever.
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justifies the open-ended retroactivity and prospectivity of the exemption, nor correlates
the timing of the possible sunset of the bill to the need for the exemption. The temporal
breadth of the exemption is not justified.20
E. THE DISTRICT COURT MISUNDERSTOOD BRYAN.
The district court recognized the discrepancy between the qualified scope of the
justification and the unqualified breadth of the exemption, but it erroneously attributed
no importance to that discrepancy. It did so based on a serious misunderstanding of
Bryan v. State, 753 So. 2d 1244 (Fla. 2000), cert. denied, 528 U.S. 1185 (2000).
The purpose of the Bryan exemption is to enable the Department of Corrections
(“DOC”) to exercise institutional control. The statute authorizes DOC to withhold from
public disclosure a certain specific category of information –“[i]nformation which if
released would jeopardize a person’s safety”– in order to promote the penological
interests of the department in “function[ing] as effectively, efficiently, and as
nonviolently as possible.” Id. (quoting Chapter 98-4, § 2, Laws of Florida (1998)). This
exemption describes the exempted information by reference to the effect of its release
rather than to its content. It enables DOC to withhold that information which it
determines would threaten the effective, efficient, and nonviolent operation of the
system.
The application of the Bryan exemption to any particular item of information
requires a factual determination by DOC that release of the information would be
dangerous to a person. Only such information with respect to which the department
makes that finding is exempt. Given the form of that exemption, it is not possible to
criticize its breadth because the exemption is self-tailoring. Indeed, Bryan does not
mention the issue of overbreadth.
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Overlooking the self-tailored breadth of the exemption, the district court seized
upon that one phrase in the justification where the Legislature recited that otherwise
public information in the custody of DOC “would in some cases” jeopardize a
person’s safety. If that form of justification were sustained in Bryan, so the district
court reasoned, then it should be sustained in Earnhardt II.
That analogy does not hold. The difference between the Bryan and Earnhardt
cases lies not in the scope of the justification but in the breadth of the exemption. The
Bryan exemption applies to just those cases where the harm will result from disclosure
whereas the Earnhardt exemption applies to all cases regardless of whether harm will
result. The comparison is shown in Table 4.
Table 4. The Distinction in Breadth between the BryanExemption and the Earnhardt Exemption
The Bryan Exemption The Earnhardt Exemption
Information held by DOC includesi n f o r m a t i o n t h a t i n
would jeopardize asome cases
person’s safety if it wereaccessible to the public.
Autopsy photographs includeimages that in wouldsome casescause severe emotional distress tothe family of the deceased if madepublicly accessible.
Therefore, in wherejust those casesDOC finds that information wouldjeopardize a person’s safety, thatparticular information is exempt.
T h e r e f o r e , a l l a u t o p s yphotographs are always exemptfrom public access in .all cases
IV. GRANTING COURTS DISCRETION TO OVERRIDE THEEXEMPTION BASED ON GOOD CAUSE DOES NOT CURE THEACT OF OVERBREADTH.
As if to concede that its categorical removal of all autopsy photographs from the
public view was both overbroad and unwise, the Legislature vested the courts with
discretion to override the exemption upon a showing of good cause. The proponents
rely on this clause as a savings clause, arguing that it empowers the courts to narrow
the exemption on a record-by-record basis and thus saves it from overbreadth.
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There is no merit in this argument because the good cause provision does not
limit the breadth of the exemption. It provides only a process by which a court may
from case to case override the overbroad exemption.
A. THE ACT CREATES AN UNJUSTIFIED EXEMPTION FROM THECONSTITUTIONAL RIGHT OF ACCESS WHICH IS NOT CURED BY THESTATUTORY RIGHT OF ACCESS AT JUDICIAL DISCRETION.
The Act creates a blanket exemption from the self-executing constitutional right
of access vested in every person by the Sunshine Amendment. Since the right to sue
for access is not the same as the self-executing right of access, it follows that granting
standing to sue for access under a standard of judicial discretion does not reduce the
breadth of the suppression of the constitutional right. A person who is granted access
by leave of court then exercises a privilege granted by a court pursuant to the statute,
but the statute had already abrogated the constitutional right of access when it removed
the record from the self-executing right of access. To the extent that the exemption is
broader than the stated necessity will justify, it unconsititutionally takes away the right
of access. Giving standing to sue does not give back that self-executing right of
access.
There could be no question that any law barring exercise of the self-executing
constitutional right of access to public records must be justified under the constitutional
standard. When the people ratified the Sunshine Amendment in November of 1992,
they elevated their traditional right of access to constitutional stature, and so the
Sunshine Amendment absorbed the traditional right of access into the Constitution.
This Court has agreed with the general principle that the Sunshine Amendment
effectively absorbed the traditional rights of access into the constitution. Frankenmuth
Ins. Co. v. Magaha, 769 So. 2d 1012, 1021 (Fla. 2000) (explaining that the Sunshine
Law “is of both constitutional and statutory dimension”). See also Op. Att’y Gen. Fla.
96-32 (explaining that “[t]he courts have recognized that Article I, section 24, Florida
21Citing Pigeon Key, the Governor argues that the Sunshine Amendment offersno greater protection from legislative exemptions than does the public records law.This misses the point of the cited cases, which is that the substantive content of theconstitutional right of access has been absorbed from the previous case law, not thatArt. I, § 24, Fla. Const., is merely a statute. The people are not so foolish as to haveconducted a referendum for the useless purpose of writing into the Declaration ofRights a mere statute. Compare Neu.
22See generally Sunshine Manual at 97-108 (reviewing law unchanged since1992); § 119.07(2)(a) (also unchanged since 1992); Tribune Company v. Cannella,458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. TribuneCompany, 471 U.S. 1096 (1985); Lorei, 464 So. 2d at 1332 ( recognizing that the“breadth of such right [to inspect] is virtually unfettered, save for the statutoryexemptions . . . .”). See also Bevan v. Wanicka, 505 So. 2d 1116 (Fla. 2d DCA 1987)
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Constitution, has elevated to constitutional status the public’s right to government in
the sunshine that had previously been recognized by statute”). Accord, Zorc v. City of
Vero Beach, 722 So. 2d 891, 896 (Fla. 4th DCA 1998); Law and Information
Services, Inc. v. City of Riviera Beach, 670 So. 2d 1014, 1016 (Fla. 4th DCA 1996);
Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857, 868 (Fla. 3d
DCA 1994).21
The constitutional right of access therefore embodies those doctrines that arose
in the judicial gloss on the statutes and rules under which our courts have concluded
that the “breadth of such right [to inspect] is virtually unfettered, save for the statutory
exemptions . . . .” See Lorei v. Smith, 464 So. 2d 1330, 1332 (Fla. 2d DCA 1985),
review denied, 475 So. 2d 695 (Fla. 1985). As the law stood on November 3, 1992,
it required the custodian of a record to either grant access immediately upon request
or sustain the burden of showing the record is clearly exempt under an express statute,
and it denied the custodian any latitude to hinder or obstruct the requester in the
meaningful exercise of the right, to impose conditions on the requester that are not
reasonable nor permissible under the law, to require a citizen to conform her request
to any formality, to justify or explain her reason for demanding access, to put her
request in writing, or even to identify herself.22
(holding production of public records may not be conditioned upon a requirement thatthe person seeking inspection disclose background information about himself orherself). See Staton v. McMillan, 597 So. 2d 940, 941 (Fla. 1st DCA 1992) (holdingstate must give prisoner records of his prosecution because he “made proper requestsfor access which may be effectuated in accordance with [the public records law] andhis reasons for seeking such access are immaterial”); State ex rel. Davidson v. Couch,158 So. 103, 105 (Fla. 1934) (right of access may not be hindered or obstructed bythe agency).
23Any such restriction is an exemption from the self-executing right of accessand subject to justification under the constitutional standard the same as a content-based exemption. Because the standard is pragmatic and workable, there is no reasonfor concern that competing interests cannot be reconciled with the right.
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This free exercisability is the essence of the self-executing right of access
guaranteed by the constitution. Because it flows directly from the Constitution and is
self-executing, the right of access cannot be restricted, subordinated, or converted into
something else except by a statute that is duly corrected and properly justified under
the constitutional standard.23
There is great danger as well as profound error in the argument that the good
cause provision serves to satisfy the requirement that an exemption “shall be no
broader than necessary to accomplish the stated purpose of the act” under Art. I, §
24(c), Fla. Const. If that were so, then the hypothetical exemption imagined in Table
5 would be narrowly tailored.
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Table 5. The radical purport of the argument that the goodcause provision satisfies the constitutionalrequirement of narrow tailoring.
Justification Public records often contain sensitive personalinformation, the unsupervised disclosure of which insome cases could inflict severe emotional trauma onthe subjects of the records and their immediatefamilies.
Exemption All public records are confidential exempt frompublic inspection and copying.
NarrowTailoring byGood Cause
A court may permit any person to inspect or copyany record if such person shows good cause forinspecting or copying the record and that no harmwill befall any person by the use to which therequester intends to put the information.
The argument that the good cause standard in the present Act satisfies the
narrow tailoring requirement is not different than the argument that the same clause in
the Table 5 example satisfies the narrow tailoring requirement. That is the dangerous
purport of the “model” of the present Act and of the arguments made by the
proponents in this case. Indeed, that is in large measure why Amici come here to urge
this Court to strike down the Act.
The idea that Art. I, § 24(c), Fla. Const., permits the Legislature to take away the
self-executing right of access and replace it with nothing more than standing to sue for
access cuts the heart from the constitutional right of access. An exemption that
reverses the presumption of openness and requires any requester who seeks access to
show good cause in an adversary civil action (or any other forum) is an overbroad
exemption pure and simple. Any other conclusion would erase the constitutional right
and render the act of the people who ratified it a nullity.
B. THE EXEMPTION CANNOT BE UNDER-JUSTIFIED MERELY TO ENABLEA GOOD CAUSE PROCESS.
In any case, the district court’s analysis of the relationship between the good
cause standard and the narrow tailoring requirement is flawed. The court disagreed that
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the Legislature’s heavily qualified findings undermined the validity of the act by
narrowing the scope of justification to something far less than the breadth of the
exemption.
Thus the fact that the Legislature used “may,” “could” and“often” is not evidence that the exemption is overly broad,but rather a recognition that circumstances may exist whichwould justify disclosure of autopsy photographs and audioand video recordings upon a showing of good cause.Moreover, use of the absolute terminology advocated byCampus such as “would,” “always” and “must” wouldforeclose the possibility that disclosure could be made evenupon a showing of good cause.
Earnhardt II at *3.
With respect, this is circular. On this reasoning, the example of Table 5 could be
sustained. The fact is that the Legislature has here purported to justify an unqualified
exemption with a qualified statement of necessity. That is the essence of facial
overbreadth under the Halifax standard. It begs an irrelevant question to reason that the
exemption should be “under-justified” in order to make possible the good clause
provision.
As a further thought experiment, assume that the Legislature had articulated a
public necessity whose scope was broad enough to match the breadth of its exemption
of all autopsy photographs from all instances of public access. Table 6 roughly
outlines the shape of such an act.
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Table 6. The fallacy of satisfying the narrow tailoringstandard by expanding the scope of thejustification to match the breadth of theexemption.
Justification The Legislature finds that autopsy photographs arealways disturbing because they always depict thedeceased nude, bruised, bloodied, broken, withbullet or other wounds, cut open, dismembered, ordecapitated and therefore finds that all instances ofpublic access to all autopsy photographs would inall cases inflict severe emotional distress on themembers of the immediate family of the deceased.
Exemption Autopsy photographs are confidential and exemptfrom inspection and copying.
There would then be congruence between the breadth of the exemption and the
scope of the justification, but, that would not end the constitutional analysis. Though
there is no issue of overbreadth, the question is whether the justification could
withstand scrutiny under the clearly erroneous standard. Compare Echarte. A
challenger easily could show that the Legislature was clearly erroneous in finding that
all autopsy photographs are disturbing, that all instances of public access inflict severe
emotional distress on the immediate family, and that there are members of the immediate
family surviving and capable of sensing this distress in the case of every instance of
requested access.
When the district court said the heavy qualifications attached to the findings in
this Act are not “evidence” that the exemption is overbroad, it missed the point of the
justification. These qualifications narrow the scope of the justification to an arc well
within the arc of the exemption. An exemption that is “under-justified” is overbroad.
These are corollaries.
Therein lies the fallacy of the court’s approval of this under-justification. As
hedged and qualified by the Legislature, the finding of public necessity for an
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Figure 2. Category 5
exemption is obviously correct and unassailable on factual grounds. But the qualified
scope of the statement of necessity does not justify the unqualified breadth of the
exemption. By qualifying the finding as it has, the Legislature has iterated something
less than an obviously erroneous universal finding, but by parity of reasoning, it has
premised a wholly unqualified exemption upon a substantially qualified justification.
This is self-confessed facial overbreadth.
C. THERE IS NO RELATIONSHIP BETWEEN GOOD CAUSE GROUNDS ANDJUSTIFICATION FOR THE EXEMPTION.
There is further incongruity in the district court’s reasoning in support of the
under-justification of the exemption. The court believed that the Legislature qualified
its findings in “recognition that circumstances may exist which would justify
disclosure.” Earnhardt II at *3. In fact, there is no correlation between the good cause
criteria and the conditions which justify the exemption.
In Figure 2, Amici have added a new Category 5 to Figure 1. This is the
potential category of instances of access that may be granted under the judicial good
cause standard. A court could grant access notwithstanding the presence of any or all
of the conditions justifying the exemption, and conversely the court could deny access
even though no condition of justification exists.
To be clear, Amici do not argue that the
good cause provision is in itself unconstitutional,
or even bad policy. Assuming that the Legislature
had tailored its exemption to the specifically
stated justification, its grant of judicial discretion
to override the exemption for good cause would
not offend the constitutional right of access.
Moreover, it would be sound public policy to vest in the courts a general power to
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override any exemption when good cause is shown. For example, such a power would
allow a court to relieve an agency charged with the safekeeping of children from the
strictures of confidentiality provisions which inhibit a full-fledged search for missing
children.
D. THE LEGISLATURE HAS THE EXPLICIT DUTY TO NARROWLY TAILOREXEMPTIONS.
In any case, the Legislature cannot abdicate to the judiciary its duty to narrowly
tailor exemptions. That duty falls directly upon the Legislature. In rejecting the
hospital’s request that it adopt a narrowing construction to save the exemption in
Halifax, the Court held that “the Legislature has an express constitutional obligation to
tailor such an exemption so that it is no broader than necessary to accomplish the
exemption’s stated purpose.” Id. at 570. There is no conceptual difference between the
overbroad exemption in Halifax and the overbroad exemption here, and there is no
reason why the Court should look more favorably on this particular form of
overbreadth.
CONCLUSION
Amici respectfully urge this Court to hold the Act facially unconstitutional, quash
the decision of the district court, reverse the Final Judgment, and remand for
proceedings consistent therewith.
Respectfully submitted,
Cobb & Cole
By:_________________________________Jonathan D. Kaney, Jr.FLA. BAR NO. 0115251Jonathan D. Kaney IIIFLA. BAR NO. 0023426150 Magnolia AvenuePost Office Box 2491Daytona Beach, FL 32115-2491Telephone: (386) 255-8171Facsimile: (386) 248-0323
44037016-008 : JKANE/JHARA : 00377689.WPD; 2
JORDEN BURT LLP
Richard J. OvelmenFLA. BAR NO. 284904Enrique D. AranaFLA. BAR NO. 189316777 Brickell Avenue, Suite 500Miami, FL 33131-2803Telephone: (305) 371-2600Facsimile: (305) 372-9928
ATTORNEYS FOR AMICI CURIAE
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IN THE SUPREME COURT OF FLORIDA
_______________________
Case No. SC02-1635_______________________
CAMPUS COMMUNICATIONS, INC.,
Petitioner,
vs.
TERESA EARNHARDT, et. al.
Respondent.
On Certified Questions FromThe Fifth District Court of Appeal
Case No. 5D01-2419
APPENDIXTO
BRIEF OF AMICI CURIAE
THE FIRST AMENDMENT FOUNDATION, THE FLORIDA SOCIETY OF NEWSPAPER EDITORS,
THE REPORTERS’ COMMITTEE FOR FREEDOM OF THE PRESS,
THE STUDENT PRESS LAW CENTER,THE SOCIETY OF PROFESSIONAL JOURNALISTS
JORDEN BURT, LLP Cobb & ColeRichard J. Ovelmen Jonathan D. Kaney Jr.FLA. BAR NO. 284904 FLA. BAR NO. 0115251Enrique D. Arana Jonathan D. Kaney IIIFLA. BAR NO. 189316 FLA. BAR NO. 0023426777 Brickell Avenue, Suite 500 150 Magnolia AvenueMiami, FL 33131-2803 Post Office Box 2491Telephone: (305) 371-2600 Daytona Beach, FL 32115-2491Facsimile: (305) 372-9928 Telephone (386) 323-9252
Facsimile (386) 255-0093