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HUNTON & WILLIAMS
IN THESUPREME COURT OF FLORIDA
Case No. SC02-1635Lower Tribunal No. 5D01-2419
CAMPUS COMMUNICATIONS, INC.,a Florida corporation, Petitioner,
vs.
TERESA EARNHARDT, THE ESTATE OF DALE EARNHARDT,DALE EARNHARDT, JR., TAYLOR EARNHARDT, DALE EARNHARDT,INCORPORATED, COUNTY OF VOLUSIA, OFFICE OF THE MEDICAL
EXAMINER, THE STATE OF FLORIDA, and MICHAEL URIBE, Respondents.
___________________________________________________
On Notice Invoking the Court’s DiscretionaryJurisdiction to Review Questions Certified to be of GreatPublic Importance by the Fifth District Court of Appeal
___________________________________________________________________________________
Petitioner’s Reply Brief________________________________
Thomas R. Julin & D. Patricia WallaceFlorida Bar Nos. 325376 & 0185930
Hunton & WilliamsAttorneys for Campus Communications, Inc., publisher of The Independent Florida AlligatorBarclays Financial Center1111 Brickell Avenue, Suite 2500Miami, Florida 33131305.810.2516 Fax 2460tjulin or pwallace @hunton.com
HUNTON & WILLIAMS
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
EXPLANATION OF REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE AND THE FACTS . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
I. Section 406.135 is Unconstitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Legislature Violated Article I, Section 24of the Florida Constitution by Enacting Section 406.135 . . . . . . . . . . 6
B. Section 406.135 May Not be Applied Retroactively . . . . . . . . . . . . . 11
II. Campus Communications Should HaveBeen Granted Access Under Section 406.135 . . . . . . . . . . . . . . . . . . . . . . 14
III. Judgment Should Have Been Entered Againstthe Earnhardts’ Disclosural Privacy Claims . . . . . . . . . . . . . . . . . . . . . . . 15
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
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TABLE OF AUTHORITIES
Cases
Askew v. Cross Key Waterways,372 So. 2d 913 (Fla. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B.H. v. State,645 So. 2d 987 (Fla. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Barron v. Florida Freedom Newspapers, Inc.,531 So. 2d 113 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Bose Corp. v. Consumers Union of the United States, Inc.,466 U.S. 485 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
City of Margate v. Amoco Oil Co.,546 So. 2d 1091 (Fla. 4th DCA 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
City of Orlando v. Desjardins,493 So. 2d 1027 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
City of Sanford v. McClelland,163 So. 513 (Fla. 1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cox v. Florida Mobile Leasing, Inc.,478 So. 2d 1200 (Fla. 4th DCA 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Detroit Free Press v. Ashcroft,303 F.3d 681 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
Division of Workers' Comp. v. Brevada,420 So. 2d 887 (Fla. 1st DCA 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
FW/PBS, Inc. v. City of Dallas,493 U.S. 215 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Freedman v. Maryland,380 U.S. 53 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Grammer v. Roman,174 So. 2d 443 (Fla. 2d DCA 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Harris v. State,31 So. 2d 264 (Fla. 1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Korematsu v. United States,323 U.S. 214 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Leisure Resorts, Inc. v. Frank J. Rooney, Inc.,654 So. 2d 911 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Levine v. Kaplan,687 So. 2d 863 (Fla. 5th DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Michel v. Douglas,464 So. 2d 545 (Fla. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Moreau v. Lewis,648 So. 2d 124 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Nixon v. Administrator of General Services,433 U.S. 425 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
North Jersey Media Group, Inc. v. Aschcroft,308 F.3d 198 (3rd Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Paul v. Davis,424 U.S. 693 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Post-Newsweek Stations, Florida, Inc. v. Doe,612 So. 2d 549 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15
Roberts v. Butterworth,668 So. 2d 580 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Shevin v. Byron, Harless, Schaffer & Associates,379 So. 2d 633 (Fla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Sims v. State,754 So. 2d 657 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State Department of Transportation v. Knowles,402 So. 2d 1155 (Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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State v. Atlantic Coast Line R.R. Co.,56 Fla. 617, 47 So. 969 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State v. Rolling,No. 91-3832-CF-A, 1994 WL. 722891 (Fla. 8th Cir. 1994) . . . . . . . . . . . . . . . 5
Tribune Co. v. Cannella,458 So. 2d 1075 (Fla. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Frandsen,212 F.3d 1231 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Village of El Portal v. City of Miami Shores,362 So. 2d 275 (Fla. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Whalen v. Roe,429 U.S. 589 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Statutes, Laws & Rules
Fla. Stat. § 14.28 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Fla. Stat. § 381.95, Fla. Stat. (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Fla. Stat. § 395.1056 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Fla. Stat. § 406.135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Fla. Stat. § 828.30(5) (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Fla. Stat. § 985.04(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ch. 2002-257, § 2, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ch. 2002-256, § 2, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ch. 2002-175, § 2, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ch. 2001-362 § 2, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ch. 2001-363 § 2, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Ch. 2000-322, § 2, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ch. 2000-311, § 2, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ch. 98-259, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ch. 97-185, § 6, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ch. 94-252 § 2, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ch. 94-118, § 3, Laws of Fla. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Florida Rule of Appellate Procedure 9.210(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . iii
Other Authorities
William H. Rehnquist, All the Laws but One (Alfred A. Knopf, Inc. 1998) . . . . . . . . . . . . . . . . . . . . . . 9
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EXPLANATION OF REFERENCES
Citations in this brief are to the record compiled in the circuit court and filed in
the Fifth District Court of Appeal. The notation (“R.__-___ Ex. or ¶ ____”) refers
to the volume number - page number, and then, when appropriate, to exhibits or
paragraphs of the referenced document. The transcript of the trial below are volumes
17 through 21 of the record. The record is consecutively numbered through the first
16 volumes and then numbering begins again in volume 17.
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INTRODUCTION
The Earnhardts argue that the Legislature’s power to choose a specific purpose
for a new exemption to the Public Records Law is absolute and that any new
exemption may extend to any category of public records that includes some records
which, if disclosed, could cause the type of harm that the exemption was enacted to
prevent.
If correct, article I, section 24 of the Florida Constitution neither would restrict
the power of the Legislature to select reasons for exempting new categories of records
nor would it require anything but the loosest possible fit between the purpose of an
exemption and its scope. In essence, the Legislature would have as much, if not more,
power to create exemptions to the Public Records Law as it did before enactment of
article I, section 24.
The desire of the powerful and popular Earnhardt family and their friends here --
the State and Governor of Florida -- to push the Court toward this construction of
article I, section 24 is understandable. In today’s world, a strong case can be made
that it is more important to ensure that the government has power to prevent physical
and emotional harm than it is to prevent government from intruding upon individual
rights, and public access can make the former more difficult while it serves the latter.
This case is not unique in that respect. In Detroit Free Press v. Ashcroft, 303 F.3d
681 (6th Cir. 2002), the United States Attorney General argued that his decision to
conduct all “special interest” deportation proceedings secretly should be upheld. His
justification: “[F]ear that dangerous information might be disclosed in some of those
Case No. SC02-1635
1 In North Jersey Media Group, Inc. v. Aschcroft, 308 F.3d 198 (3rd Cir. 2002), adivided panel of the Third Circuit disagreed that the First Amendment protects accessto immigration proceedings, but not with the standard to be applied to close judicialproceedings.
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hearings.” Id. at 692 (emphasis added). The Earnhardts, the State, and the Governor
all echo that cry here, observing that Campus Communications’ argument would
require invalidation not only of the exemption at issue here, but also broad post-
September 11 Public Records Law exemptions designed to protect Floridians against
terrorist attack. As will be shown, that argument is specious, but just as importantly,
the Sixth Circuit unanimously rejected the Attorney General’s argument, holding, “The
Executive Branch seeks to uproot people’s lives, outside the public eye, and behind
closed doors. Democracies die behind closed doors.” Id. at 683. “When
government begins closing doors, it selectively controls information rightfully
belonging to the people. Selective information is misinformation.” Id. The First
Amendment, the Sixth Circuit held, requires the government, even when terrorism is
feared, to justify the closure of deportation hearings with a compelling interest and a
showing that closure is narrowly tailored to serve that interest. Id. at 705. The court
found the closure of all “special interest” deportation proceedings to be more
extensive than necessary to serve the government’s articulated compelling interest.1
Id. at 707-10.
When the people of Florida adopted article I, section 24 to curtail legislative
power, they borrowed from this well established First Amendment jurisprudence and
used it to direct the Florida Legislature not to enact new exemptions to the Public
Case No. SC02-1635
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Records Law that would be broader than necessary to accomplish the stated public
necessity of the exemption. Article I, section 24 therefore protects access to public
records in much the same way that the First Amendment protects access to judicial
proceedings. The Earnhardts’ arguments that the exemption from both inspection and
copying requirements of all autopsy photographs is no broader than necessary to
serve the purpose of the exemption -- prevention of the harm that is caused by the
inspection and copying of some photographs -- cannot stand unless the Court is
willing to eviscerate the operation of article I, section 24. The Legislature itself has
acknowledged, history has proven, and common sense informs that harm is not
caused by the inspection of all autopsy photographs. For this reason, the exemption
is void.
The Earnhardts’ assertion that section 406.135 can be retroactively applied is
equally unavailing because it relies on the trial court’s ex parte erroneous issuance of
a temporary injunction to protect disclosural privacy rights that do not exist.
STATEMENT OF THE CASE AND THE FACTS
The Earnhardts initially urge the Court to ignore newspaper articles offered by
Campus Communications in evidence to show that when it sought access to the
Earnhardt autopsy photographs a substantial public controversy existed regarding
whether the National Association for Stock Car Auto Racing, Inc. (“NASCAR”) had
lied to the public and the press regarding the actual cause of Earnhardt’s death.
(Earnhardt Brief at 2). The articles show that NASCAR publicly claimed that the
failure of Earnhardt’s seat belt was the cause of his death, while the Orlando Sentinel,
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2 Because the Court has jurisdiction to answer the certified question, it also hasjurisdiction “to review the district court’s decision for any error,” see Leisure Resorts,Inc. v. Frank J. Rooney, Inc., 654 So. 2d 911, 912 (Fla. 1995), including this questionwhich should be resolved, if necessary, as expeditiously as possible in light of the factthat access already has been delayed for almost two years.
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the seat belt manufacturer, and an emergency medical technician who attended
Earnhardt at the crash all supported the theory that NASCAR’s failure to require a
head and neck restraint system was the cause of death. (R. 12-1941-82). Campus
Communications agrees that these articles need not be considered if the Court rejects
its argument that section 406.135 is facially unconstitutional, but if the Court upholds
the statute, the articles should be considered to decide whether the trial judge erred in
finding “good cause” had not been shown under the statute for allowing inspection
and copying.2
The Earnhardts assert that they commenced this action to enjoin the release of
the photographs in reliance on “well-established Florida and federal constitutional law”
regarding the “disclosural right of privacy.” (Earnhardt Brief at 3). The cited cases
reject the existence of such a right, Post-Newsweek Stations, Florida, Inc. v. Doe, 612
So. 2d 549 (Fla. 1992), require disclosure of divorce records, Barron v. Florida
Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988); and allow press inspection
of gruesome crime scene photographs, State v. Rolling, No. 91-3832-CF-A, 1994 WL
722891 (Fla. 8th Cir. 1994). The state constitutional provision on which the Earnhardts
based their claim, article I, section 23, states on its face that it does not “limit the
public’s right of access to public records.”
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The Earnhardts describe the trial court’s ruling, but they do not cite to any
evidence to support findings such as “there were no allegations of government
impropriety here.” (Earnhardts Brief at 8). Throughout the proceedings, Campus
Communications argued that it appeared as though NASCAR, an entity regulated by
the Legislature, tried to mislead law enforcement regarding the cause of Earnhardt’s
death to deflect criticism of its poor safety record, liability for the deaths of drivers,
and public disenchantment with an organization that realized enormous profits while
ignoring the deaths of its top stars; that police ignored the apparent NASCAR actions;
and that the medical examiner failed properly to determine that NASCAR’s own failure
to heed safety experts had contributed directly to Earnhardt’s death. (R.20-478-81
& 556-732).
STANDARD OF REVIEW
Campus Communications agrees with the Earnhardts that the issue of whether
section 406.135 is constitutional is reviewable de novo.
If this Court reviews the trial court’s determination of whether “good cause”
was shown for disclosure of the records, it should make an independent review of the
entire record to ascertain for itself whether the trial court’s findings are correct. Only
in this way, can the members of this Court, as expositors of the Florida Constitution,
ensure that the constitutional right of access has not been improperly curtailed. Cf.
Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485 (1984)
(holding such independent review is necessary in libel cases to prevent findings of
“actual malice” from eroding First Amendment rights).
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3 See Ch. 2002-257, § 2, Laws of Fla., (“[S]uch numbers are of asensitive, personal nature)” (emphasis added); Ch. 2002-256, § 2, Laws of Fla.(“public disclosure of the social security number constitutes an unwarrantedinvasion into the life and personal privacy of a person”) (emphasis added); Ch.2000-322, § 2, Laws of Fla. (“Disclosure of proprietary confidential businessinformation in a local governmental entity’s possession would adversely affect thebusiness interests of telecommunications companies and franchised cablecompanies”) (emphasis added); Ch. 2000-311, § 2, Laws of Fla. (“If informationcollected during investigations or reviews of certified capital companies is notprotected, critical proprietary information regarding investment contracts and thestructuring of investments in certified capital companies will be revealed”) (emphasis added); Ch. 98-259, Laws of Fla. (“revealing such information . . . is an
(continued...)
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ARGUMENT
I.
Section 406.135 is Unconstitutional
None of the respondents has refuted either of Campus Communications’ two
attacks on the constitutionality of section 406.135.
A. The Legislature Violated Article I, Section 24of the Florida Constitution by Enacting Section 406.135
In response to Campus Communications’ argument that the Legislature itself
recognized that not all autopsy photographs would cause harm if inspected or copied
and that the exemption therefore must be overbroad because it applies to all autopsy
photographs, the Earnhardts direct the Court’s attention to eleven exemptions to the
Public Records Law created after the enactment of article I, section 24(c) (Earnhardt
Brief at 23-27). If Campus Communications’ “view is upheld,” they argue, these
“other statutes will, of necessity[,] be overturned.” (Earnhardt Brief at 27). A review
of seven of the cited exemptions shows, however, that the Legislature exempted only
those records that it found would cause harm if released.3 The Legislature did not, as
Case No. SC02-1635
(...continued)unnecessary intrusion into the personal affairs of the program participants”)(emphasis added); Ch. 97-185, § 6, Laws of Fla. (“Limiting access . . . will affordthe public an added measure of protection [and] will conform state law to therequirements of the federal Driver’s Privacy Protection Act of 1994”) (emphasisadded); Ch. 94-118, § 3, Laws of Fla. (“Information contained in such records isof a sensitive and personal nature”) (emphasis added). 4 Ch. 2002-175, § 2, Laws of Fla. (“Disclosure of bank account numbers and debit,charge, and credit card numbers would create the opportunity for theft or fraudthereby jeopardizing the financial security of an individual”); Ch. 94-252 § 2, Laws ofFla. (records “could severely hamper the successful completion of the investigationand have unnecessary negative ramifications on the personal and professionalreputation of the accused officer”). Significantly, neither of these exemptions has beenchallenged.
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it has in chapter 2001-1, exempt both records that it found would cause harm if
released and records that it did not find would cause harm if released. These
exemptions show that the Legislature clearly understands its duty under article I,
section 24 to match the scope of the exemption to the purpose of the exemption and
that it is able to accomplish that duty.
But, the Earnhardts also direct the Court’s attention to Chapters 2001-362 § 2,
Laws of Florida (codified as section 395.1056, Fla. Stat. (2002)), and 2001-363 § 2,
Laws of Florida (codified as section 381.95, Fla. Stat. (2002)), exemptions enacted
in reaction to the events of September 11, 2001, for records concerning emergency
management plans and medical facilities. The Legislature exempted these records
because any of them “could be used to hamper or disable the response of a hospital
to a terrorist attack,” ch. 2001-362 § 2, or “could be used by terrorists in planning acts
of terrorism.” Ch. 2001-363 § 2 (emphasis added). The Earnhardts contend that these
exemptions and others4 would have to be stricken, if section 406.135 were held to be
Case No. SC02-1635
5 The Court should be cautious about accepting arguments that article I,section 24 must be interpreted narrowly to preserve the power of the Legislature toprotect the public against terrorist attacks. When such arguments have seduced othercourts, see Korematsu v. United States, 323 U.S. 214 (1944) (upholding the intermentof Japanese Americans during World War II), the results have been condemned byhistory. “It is all too easy to slide from a case of genuine military necessity, where thepower sought to be exercised is at least debatable, to one where the threat is notcritical and the power dubious or nonexistent.” William H. Rehnquist, All the Lawsbut One, 224 (Alfred A. Knopf 1998). 6 See Sims v. State, 754 So. 2d 657 (Fla. 2000); B.H. v. State, 645 So. 2d987, 991-92 (Fla. 1994); Askew v. Cross Key Waterways, 372 So. 2d 913, 924 (Fla.1979); State v. Atl. Coast Line R.R. Co., 56 Fla. 617, 47 So. 969 (1908).
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overbroad because the overbreadth attack is based on the fact that section 406.135,
like these statutes, exempts records that “could” cause harm if released. The
Earnhardts’ efforts to equate September 11 exemptions with the exemption here is
faulty because the former are based upon the danger that access to any of the
exempted records poses, while the latter is based upon harm that access to some of
the records poses. The former arguably meets the requirements of article I, section
24, 5 the latter clearly does not.
The Earnhardts argue alternatively that if the Court agrees that section 406.135
is overbroad, it nonetheless may be upheld because it contains a procedure through
which some exempt records may be obtained. Campus Communications
demonstrated that this mechanism impermissibly delegated to the judicial branch the
power to exercise unrestricted discretion in applying the law.6 The Earnhardts
respond that “Courts already know and apply good cause in a variety of contexts,”
(Answer Br. at 47, n. 41), but cite only one case to support this proposition, Levine
v. Kaplan, 687 So. 2d 863, 865, (Fla. 5th DCA 1997), in which the court applied the
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7 See Fla. Stat. § 14.28 (2002) (concerning confidentiality of records developed orreceived pursuant to a Board of Executive Clemency investigation, which “may bereleased upon the approval of the Governor”); Fla. Stat. § 828.30(5) (2002) (providingthat certain entities or people “shall be provided information contained in the rabiesvaccination certificate” for certain designated purposes); Fla. Stat. § 985.04(4)(a)(records held in custody of Department of Juvenile Justice “may be inspected onlyupon order of the Secretary of Juvenile Justice or his or her authorized agent bypersons who have sufficient reason and upon such conditions for their use anddisposition as the secretary or his or her authorized agent deems proper”). 8 The State, for its part, suggests that the Court can sever the “good cause”mechanism if it concludes that it is constitutionally defective. (State Brief at 21). Itfails, however, to show that the test for severance can be met here. See Moreau v.Lewis, 648 So. 2d 124, 128 (Fla. 1995) (holding severance can be ordered only ifgood and bad features are not so inseparable in substance that it can be said that theLegislature would have passed the one without the other).
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“good cause” standard of the judicially created Florida Rules of Civil Procedure to
determine whether it should dismiss a case from its docket for failure to prosecute.
The Earnhardts’ recourse to Florida Statutes, which they say “authoriz[e] a court to
permit an act upon ‘good cause shown’” (Answer Br. 47, n.41) is misleading. Many
of the statutes cited say nothing about courts at all or deal with records in the custody
of the court.7 The Earnhardts also ignore the fact that only two of the ten statutes
cited by the Fifth District as utilizing a “good cause” scheme do not refer to “good
cause” at all and do not employ the “may” mechanism.8
The Earnhardts’ argument that the “good cause” device can save the statute is
similar to the argument advanced by those who seek to justify government licensing
ordinances. Such ordinances often broadly prohibit entire classes of unlicensed
speech. The courts have held that although such schemes impose burdens on both
protected and unprotected speech, they can be upheld if they employ sufficiently
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9 See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-26 (1990). 10 See Freedman v. Maryland, 380 U.S. 53, 58-60 (1965) (any restraint mustbe imposed for only a specific, brief period of time; the regulation must provide forprompt judicial review, the licensing body must bear the burden of obtaining promptjudicial review of any license denial, and the burden of proof must be on thegovernment to show the necessity of the restraint); see also United States v. Frandsen,212 F.3d 1231, 1236 (11th Cir. 2000). 11 See, e.g., Village of El Portal v. City of Miami Shores, 362 So. 2d 275 (Fla.1978); Grammer v. Roman, 174 So. 2d 443 (Fla. 2d DCA 1965).
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specific criteria,
9 and procedural safeguards that prevent their use for impermissible censorship.10 If
section 406.135 is to be saved from overbreadth by procedural safeguards then, those
safeguards must mirror the safeguards imposed by the First Amendment on speech
licensing schemes. The “good cause” provisions of section 406.135 plainly do not
do that. They do not use specific criteria identifying records that may be withheld,
they do not impose specific, brief time periods for limiting access, and they do not
place the burden on the government to justify withholding any record.
B. Section 406.135 May Not be Applied Retroactively
Regarding retroactivity, the Earnhardts assert that the retroactive application of the
exemption is permissible because the statute is remedial. They ignore that a “remedial”
statute is one that leaves a substantive right intact, but alters the remedy for violation
or exercise of that right.
11 Plainly, the exemption here is not in fact remedial because it does not leave a
substantive right intact, but rather, effectively abrogates the substantive right of access
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12 The Earnhardts cite to Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996)and City of Orlando v. Desjardins, 493 So. 2d 1027 (Fla. 1986) in support of theirposition that it is constitutional to retroactively apply the exemption here. Theretroactive application of the exemption, however, is entirely different in its effect fromthe retroactive application of the exemptions at issue in both Roberts and Desjardinsand, unlike the situation in those cases, is not constitutional. In the exemptions at issuein Roberts and Desjardins, the right of access to records was kept intact and theremedy for exercising that right was simply altered by delaying the time for inspectionand copying. By contrast, with the exemption at issue here, retroactive applicationeliminates the right of access altogether. 13 See, e.g., Cox v. Florida Mobile Leasing, Inc., 478 So. 2d 1200, 1201 (Fla. 4thDCA 1985). 14 See, e.g., Harris v. State, 31 So. 2d 264, 266 (Fla. 1947) (right to liquorvested at time application submitted and denied); City of Margate v. Amoco Oil Co.,546 So. 2d 1091 (Fla. 4th DCA 1989) (right to permit for gas station vested whenrequest for permit was wrongfully denied and enactment of subsequent statute could
(continued...)
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to autopsy photographs.12
The Earnhardts also argue that Campus Communications’ right to the autopsy
photographs did not vest because the photographs were not requested until after entry
of the trial court’s order enjoining the medical examiner from releasing the
photographs. The temporary injunction merely prevented Campus Communications
from gaining access to the photographs, it did not alter its right to immediate
possession of the photographs. The granting of a temporary injunction is not a
determination of the merits of a case,13 yet that is precisely what the Earnhardts
contend here. Moreover, the ex parte temporary injunction never should have been
issued because the Earnhardts had no basis even to ask for it, see Part III infra, and
Florida law is well established that the improper denial of a request to a public official
that should have been granted results in a vesting of a right to have the request
granted.14
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(...continued)not destroy vested right). 15 See Campus Communications’ Initial Brief at 36-37, fn. 18. 16 See City of Sanford v. McClelland, 163 So. 513, 514 (Fla. 1935) (holdingthat “[a] vested right had been defined as an ‘immediate, fixed right of present orfuture enjoyment’”); Division of Workers’ Comp. v. Brevada, 420 So. 2d 887, 891(Fla. 1st DCA 1982) (holding in order for a right to have vested, “‘it must have becomea title, legal or equitable, to the present or future enforcement of a demand.’”
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The Earnhardts argue alternatively that the Fifth District correctly concluded
that a right to public records never vests because it is a public right, rather than a
private right, but do not address Campus Communications’ argument that none of the
cited involve public records at all15 or that those cases support the principle asserted
by Campus Communications that once a public record has been requested, the right
to inspect and copy it has vested.16
When the Earnhardts address whether section 406.135 can survive the three-part
test for evaluating the constitutionality of retroactive legislation set forth in State
Department of Transportation v. Knowles, 402 So. 2d 1155, 1158 (Fla. 1981), they
resort to the argument that the statute does not abrogate the right of access because
it establishes a process under which the right can be exercised. That argument should
be rejected because exercising the right under this process yields nothing. When the
standards established by Knowles are properly applied, the sole conclusion that can
be reached is that section 406.135 violated the constitutional proscription against
retroactive legislation by destroying a fundamental constitutional right without sufficient
justification.
II.
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17 See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425 (1977);Whalen v. Roe, 429 U.S. 589 (1977); Paul v. Davis, 424 U.S. 693 (1976); Michel v.Douglas, 464 So. 2d 545, 546 (Fla. 1985); Tribune Co. v. Cannella, 458 So. 2d 1075,1078 (Fla. 1984); Doe, 612 So. 2d at 552; Shevin v. Byron, Harless, Schaffer &Assocs., 379 So. 2d 633 (Fla. 1980).
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Campus Communications Should Have Been Granted Access Under Section 406.135
The facts known by the public about Dale Earnhardt’s death strongly suggest
that NASCAR deliberately attempted to deflect criticism that it should have required
its drivers to use head and neck restraint systems by publicly declaring that
Earnhardt’s seat belt had broken. The photographs at issue may show whether this
is true, whether police blindly accepted NASCAR claims regarding the cause of
Earnhardt’s death, whether the medical examiner made a proper determination of the
cause of death, and whether the same Florida Legislature that enacted section 406.135
should revisit its regulation of NASCAR. These simple undisputed facts all provide
good cause for allowing, at the very least, inspection of the records at issue.
III.
Judgment Should Have Been EnteredAgainst the Earnhardts’ Disclosural Privacy Claims
The Earnhardts continue to assert that even if section 406.135 is
unconstitutional, this Court can affirm the permanent injunction entered below by
recognizing such a right. Both this Court and the United States Supreme Court
repeatedly have held such a right does not exist.17 The Earnhardts’ reliance on Doe
as holding to the contrary is misplaced, because standing was not even an issue in that
case. See Doe, 612 So. 2d at 550 n.2. The Doe Court held only that the plaintiffs had
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no right to stop the release of the records at issue, even assuming they did have
standing. The permanent injunction entered by the circuit court must be reversed
because the Earnhardts had no standing to seek such relief.
CONCLUSION
The certified questions should be answered negatively and the decision below
should be vacated with instructions for entry of an order requiring the medical
examiner to produce the records at issue for inspection and copying.
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HUNTON & WILLIAMS
Respectfully submitted,
Hunton & WilliamsAttorneys for Campus Communications, Inc., publisher
of The Independent Florida Alligator
By___________________________________________Thomas R. Julin & D. Patricia WallaceFlorida Bar Nos. 325376 & 0185930Barclays Financial Center1111 Brickell Avenue, Suite 2500Miami, Florida 33131305.810.2516 Fax 2460tjulin or pwallace @hunton.com
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this brief was mailed December
9, 2002, to:
Daniel D. EckertCounty Attorney123 West Indiana AvenueDeland, FL 32720-4613
E. Thom RumbergerErnest EubanksRumberger, Kirk & Caldwell, P.A.Signature Plaza, Suite 300201 South Orange AvenuePost Office Box 1873Orlando, FL 32802-7300Telephone 407.872.7300Telecopier 407.841.2133
Parker D. Thomson & Carol A. Licko1111 Brickell Avenue, Suite 1900Miami, FL 33131
Dickson M. LupoJudson Graves
Case No. SC02-1635
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HUNTON & WILLIAMS
Alston & BirdBank of America Plaza101 South Tryon Street, Suite 4000Charlotte, NC 28280-4000
Jon L. MillsP.O. Box 2099Gainesville, FL 32602-2099
Richard J. OvelmenJordan Burt LLP777 Brickell Avenue, Suite 500Miami, FL 33131-2803
Jonathan D. Kaney, Jr.150 Magnolia AvenueDaytona Beach, FL 32115
Michael UribeDr. Lau Wing KongShop 3, Ground FloorCharming GardenMongkok WestKowleon, Hong Kong
Thomas E. WarnerSolicitor GeneralOffice of the Solicitor General, The CapitolTallahassee, FL 32999-1050
__________________________________________ Thomas R. Julin
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the font requirements of Florida
Rule of Appellate Procedure 9.210(a)(2).
__________________________________________ Thomas R. Julin
