1994 Florida ruling denying motion to close trial in museum abuse suit

EFTA00183645¶

Westlaw.¶

Not Reported in So.2d¶

Not Reported in So.2d, 1994 WL 741009 (Fla.Cir.Ct.), 22 Media L. Rep. 2497¶

(Cite as: 1994 WL 741009 (Fla.Cir.Ct.))¶

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Florida Circuit Court, Seventh Judicial Circuit, Volusia County.¶

JOHN DOE-1 THROUGH JOHN DOE-4 and Parents of John Doe-1 through John Doe-4, Plaintiffs,¶

MUSEUM OF SCIENCE AND HISTORY OF JACKSONVILLE, INC., Defendant.¶

Nos. 92-32567-CI-CI, Div. 32.¶

June 8, 1994.¶

William H. Ogle, Ormond Beach, FL.¶

W. Douglas Childs, Jacksonville, FL.¶

Jonathan D. Kaney Jr., Daytona Beach, FL.¶

OPINION AND ORDER ON MOTION TO CLOSE TRIAL¶

RICHARD B. ORFINGER, Circuit Judge.¶

*1 THIS MATTER is before the Court on the plaintiffs’ motion to exclude the public from the trial of this case. Notice of hearing was given to representatives of the media as required by law. News-Journal Corporation, publisher of The News-Journal, filed a response and appeared in opposition to the motion. Defendant took no position.¶

According to the complaint, a man who worked at the local museum sexually abused the minor plaintiffs. He had first come into contact with three of the minors as they served as volunteers under his supervision. More than four years ago, the abuser was prosecuted and sentenced to prison. Since then the plaintiffs have settled suits for damages resulting from this abuse against the Daytona Beach Museum of Arts and Sciences, the Volusia County School Board, and the Florida Department of Health and Rehabilitative Services. As a previous employer of the abuser, plaintiffs allege this de-¶

fendant failed to disclose information about the abuser’s record of sexual abuse when it received an inquiry related to his employment in this community.¶

Although so many persons have become familiar with the case that defendant has listed eighty-one potential fact witnesses, no victim has yet been identified in the media.¶

Relying on a privacy interest in the facts relating to the sexual abuse, plaintiffs argue that closure is necessary to prevent the substantial harm that likely would result from revelation of these facts and identification as the victims. Thus the motion calls upon the court to decide whether a privacy interest in the facts relating to sexual abuse suffered by the minors provides a proper basis for closure of the trial of the minors’ suit for damages arising out of this abuse. For the reasons that follow, the court concludes that this is not a proper basis for closure and denies the motion.¶

FN1. Previously, plaintiffs moved for an order restraining anyone, including the media, from publishing information disclosed during the trial that would identify the minor victims. The court denied this motion. See: Nebraska Press Association Stuart, 427 U.S. 539 (1976) and The Florida Star B.J.F., 491 U.S. 524 (1989).¶

Whenever other interests compete with the public interest in open judicial proceedings, “[o]ur analysis must begin with the proposition that all civil and criminal court proceedings are public events, records of court proceedings are public records, and there is a strong presumption in favor of public access to such matters.” Sentinel Communications Co.¶

| . Watson, 615 So.2d 768, 770 (Fla. 5th DCA 1993) (citing Barron . Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988)). This presumption rests on the most fundamental values of American government.¶

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[T]he people have a right to know what is done in their courts… [T]he greatest publicity to the acts of those holding positions of public trust, and the greatest freedom in the discussion of the proceedings of public tribunals that is consistent with truth and decency, are regarded as essential to the public welfare.” Barron, 531 So.2d at 116-7 (citing In re Shortridge, 34 P. 227, 228-29 (Cal.1893)).¶

Openness in courts has a salutary effect on the propensity of witnesses to tell the truth and of judicial officers to perform their duties conscientiously. It informs persons affected by litigation of its effect upon them and fosters “respect for the law[,] intelligent acquaintance … with the methods of government[, and] a strong confidence in judicial remedies … which could never be inspired by a system of secrecy…” Id., (citing 6 WIGMORE, EVIDENCE § 1834 (Chadbourn rev.1976)).¶

These fundamental values come into play whenever the court is in session, and the presumption of openness applies in hard cases as well as easy cases. “The reason for openness is basic to our form of government.” Id.¶

*2 This motion is opposed by various news organizations, but the presumption of openness is of larger importance than the immediate interest of the press in the case of the moment. To be sure, the press has a cognizable interest in maintaining open courts “because its ability to gather news is directly impaired or curtailed” by restrictions on access. Moreover, the press is assigned a fiduciary role in enforcing public rights of access because the press “may be properly considered as a representative of the public [for] enforcement of public right of access.” Nevertheless, the values of openness in courts transcend the interests of the press because “[f]reedom of the press is not, and has never been a private property right granted to those who own the news media. It is a cherished and almost sacred right of each citizen to be informed about current events on a timely basis so each can exercise his discretion in determining the destiny and security of himself, other people, and the Nation.” State ex rel. Miami Herald Pub. Co. McIntosh, 340 So.2d 904, 908 (Fla.1977). In serving the right of each citi-¶

izen to be informed, judicial openness, of which the press is an instrument, sustains public confidence in the judiciary and thus serves the ultimate value of popular sovereignty.¶

This higher purpose of openness is not always apparent in the public scrutiny of the daily business of the courts. Depending on the definition of newsworthiness, it may be possible to dismiss as unworthy much that transpires in civil courts. Here, it is easy to ask what public interest is served by subjecting these minor victims to the risk of public identification. However, Barron teaches that this is the wrong question because it overlooks the higher purpose of openness in the courts.¶

In Barron, a case involving privacy concerns inherent in a divorce case, the court strongly reaffirmed the presumption that Florida civil courts are open. In dissent, Justice McDonald saw the question in case-specific terms. He would have closed the proceeding because “the rights of the public to information contained in a domestic relations lawsuit is minimal, if existent at all.” 531 So.2d at 121. Implicitly, this approach would have required the proponent of openness to show a particular need to know facts of the specific case in order to gain access. The majority rejected this approach because it saw the conflicting interests in broader terms. “The parties seeking a dissolution of their marriage are not entitled to a private court proceeding just because they are required to utilize the judicial system.” 531 So.2d at 119.¶

A closure request implicates the integrity and credibility of the judicial system itself and not just the immediate concerns of the parties. The balance to be struck is not between the people’s need to know the particular facts of the case versus the parties’ need to keep these facts private but between the public interest in open courts versus the personal desire for a private forum. “Public trials are essential to the judicial system’s credibility in a free society.” Barron at 116.¶

*3 Although the Florida Supreme Court holds that¶

EFTA00183647¶

Not Reported in So.2d Not Reported in So.2d, 1994 WL 741009 (Fla.Cir.Ct.), 22 Media L. Rep. 2497 (Cite as: 1994 WL 741009 (Fla.Cir.Ct.))¶

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“the public and the press have a fundamental right of access to all judicial proceedings,” however, this right is not absolute. State ex rel. Miami Herald Pub. Co. McIntosh, 340 So.2d at 908-9. In Barron, the court took the occasion to establish the standards upon which the presumption of openness may be overcome when necessary “to protect competing interests.” The court wrote a “definitive statement … to assist judicial officers in this sensitive area.” 531 So.2d at 117-8.¶

Barron establishes a strong presumption of openness for all court proceedings and records, places the burden on the proponent of closure, and grants standing to the public and media to challenge closure orders. Before a court may enter any order of closure it must determine there are no reasonable alternatives to closure and must order the least restrictive closure necessary to accomplish the purpose of closure. 531 So.2d at 118-9. A closure order should be “drawn with particularity and narrowly applied.” 531 So.2d at 117.¶

Barron specifies an exclusive listing of those competing interests that may under appropriate circumstances be sufficiently weighty to justify closure. Closure may be ordered “only when necessary” to serve one of six competing interests:¶

(a) to comply with established public policy set forth in the constitution, statutes, rules, or case law;¶

(b) to protect trade secrets;¶

(d) to obtain evidence to properly determine legal issues in a case;¶

(e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or¶

(f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed…¶

At the outset, the proponent of closure must identify one or more of such interests that is implicated in the proposed closure. Here it is not necessary to go beyond this first level of analysis because plaintiffs have not connected their motion to a valid interest that would justify closure.¶

This motion poses a direct confrontation between the individual interest in privacy and the public interest in open courts. Because there is inherent in the case sensitive, intimate, and embarrassing private facts, plaintiffs seek to litigate their claim in a closed proceeding. They argue “[t]hat revelation of [the identities of the minor plaintiffs] has the potential to inflict substantial harm upon them [as] a matter of common sense.”¶

There is no question there are strong reasons to keep private the facts surrounding the abuse practiced on the minors by the now-imprisoned abuser. The question this court must decide, however, is whether these are reasons to secure the courtroom. The question is not whether to afford privacy to the plaintiffs but whether to afford plaintiffs a closed forum in which to disclose these facts.¶

*4 Although there is no case directly on this point, the present question comes fully within the holding of Barron, which thoroughly considered the competition between the people’s interest in public courts and the personal interest in private facts. In effect, Barron raised the question of the role to be assigned to privacy in a system of public courts, and the majority resolved the issue by granting a narrow role to privacy based on considerations relating to the legitimate expectations of privacy.¶

In the Florida Supreme Court’s well-developed privacy jurisprudence, the fundamental basis of the right of privacy is a legitimate expectation of privacy. Not every fact in every circumstance is private, and not every act of government violates¶

EFTA00183648¶

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the right to be let alone. The concept by which the court separates the appropriate from the inappropriate instance for invoking the privacy right is this expectation. Stall. State, 570 So.2d 257, 261 (Fla.1990). In order to establish a right of privacy, the individual must establish that “a reasonable expectation of privacy … exist[s].” Winfield. Division of Pari-Mutuel Wagering, 477 So.2d 544, 547 (Fla.1985).¶

A right of privacy cannot attach when there is no expectation of privacy. Under our historic tradition of public courts, what reasonable expectation of privacy could a litigant possibly entertain? Concurring in Barron, Justice Erhlich would have conceded the litigant no reasonable expectation of privacy. He pointed out, “we have … recognized that ‘[t]he potential for invasion of privacy is inherent in the litigation process.’ Rasmussen. South Florida Blood Service, 500 So.2d 533, 535 (Fla.1987). While civil litigants may have a legitimate expectation of privacy in pretrial depositions and interrogatories which are not filed with the court (citations omitted), no such expectation exists in connection with civil proceedings and court files which historically have been open to the public. See Forsberg. Housing Authority, 455 So.2d 373, 375 (Fla.1984) (Overton, J., concurring) (there is traditionally no expectation of privacy in court files).” 531 So.2d at 120. Justice Erhlich shows the conflict between privacy and publicness. If the privacy interest were allowed unbounded scope, it would overcome the public nature of trials. Thus a system of public trials must insist that litigants abandon qualms about disclosure of private facts when they place them in contest in the court.¶

Without rejecting this view entirely, the majority nevertheless identified a limited scope of privacy within civil litigation. “We find that, under appropriate circumstances, the constitutional right of privacy established in Florida by the adoption of article I, section 23, could form a constitutional basis for closure under (e) or (f).” 531 So.2d at 118. The majority thus conceived of two instances in which a¶

reasonable expectation of privacy might be found.¶

*5 First, there is the privacy expectation of persons who are not parties to the case. Involuntary participants may have a reasonable claim of privacy. Thus under item (g), Barron recognizes that closure may be justified if the proponent carries the heavy burden of showing closure is necessary “to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce].” 531 So.2d at 118.¶

Second, there is the more limited privacy expectation of a party. Again, the doctrine of legitimate expectation is applicable. Although a litigant has no right to expect privacy in matters involved in the case litigated in a public court, there may be matters extrinsic to the case with respect to which a litigant has a reasonable privacy claim. Under Barron’s item (f), a proponent may be entitled to closure if he or she carries the burden of showing that closure is necessary “to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” 531 So.2d at 118.¶

Barron rules out closure based on privacy interests of parties in the subject matter of the case itself. In recognizing a peripheral role for the privacy claims of civil litigants, the majority held there can be no privacy interest in that which is inherent in the case. Because litigation in a public court system involves an inherent tendency to invade privacy, a litigant has no reasonable expectation of privacy in the subject matter of a case. This must be so if, as Barron soundly affirms, there is to be a system of open courts in Florida.¶

Applying this standard in Barron, the court determined the medical history in question should not be sealed because it was inherent in the case.¶

“Although generally protected by one’s privacy right, medical reports and history are no longer protected when the medical condition becomes an integral part of the civil proceeding, particularly¶

EFTA00183649¶

Not Reported in So.2d Not Reported in So.2d, 1994 WL 741009 (Fla.Cir.Ct.), 22 Media L. Rep. 2497 (Cite as: 1994 WL 741009 (Fla.Cir.Ct.))¶

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when the condition is asserted as an issue by the party seeking closure… [M]edical information is an inherent part of these proceedings and cannot be utilized as a proper basis for closure.” 531 So.2d at 119.¶

The same is true in this case. Those private facts which form the basis of the motion for closure are the facts inherent in the plaintiffs’ case. Nevertheless, plaintiffs argue their request implicates the competing interests Barron listed in item (a) dealing with public policy, item (e), dealing with privacy of third party, and item (f), dealing with privacy of a party.¶

Plaintiffs first argue that closure of the trial is necessary under item (a) “to comply with established public policy set forth in the constitution, statutes, rules, or case law.” 531 So.2d at 118. Plaintiffs rightly contend “[t]he State of Florida has long recognized, as a matter of public policy, the need to protect minors who come into contact with the justice system,” and cite statutory provisions exempting records of sex crimes and child abuse from public records disclosure and providing for closure of adoption and dependency proceedings. See Fla. Stat. §§ 119.07(h); 63.162; 39.408(c).¶

*6 To be sure, it is public policy to protect minor victims of sex crimes from unnecessary public exposure. The cited exceptions to public records laws illustrate this as does the practice of anonymous pleading.¶

However, state policy neither requires nor permits closure of public trials on the basis of the privacy interests of minor victims of sex crimes. The trial of the perpetrator of a sex crime against a minor must be conducted in public as a matter of Florida common law. Under Fla.Stat., § 918.16, the court has a certain ability to clear the courtroom during testimony of a person under the age of 16, but the press specifically may not be excluded. A recent statute protecting minor witnesses does not purport to authorize closure of the trial to protect minor witnesses. When the state prosecutes the¶

parent of a minor child for sexual abuses practiced on the child, the trial is not closed nor is there suppression of the identity of the parent from which, as plaintiffs argue here, the identity of the child is readily inferred. Indeed, from the reports of tort suits by minor victims of sexual crimes seeking damages from the perpetrator or those vicariously liable, it can be seen that the courts of this state conduct cases like the present as open public trials in the name of the party.¶

FN2. Bundy . State, 455 So.2d 330 (Fla.1984), cert. denied, 476 U.S. 1109 (1986). Miami Herald Publishing Co. Lewis, 426 So.2d 1 (Fla.1982). See also Globe Newspaper Company Superior Court, 102 S.Ct. 2613 (1982) (Same under First Amendment).¶

FN3. See Palm Beach Newspapers. Nourse, 413 So.2d 467 (Fla. 4th DCA 1982) (Error to summarily exclude press from arraignment of defendant charge with lewd and lascivious act on child under age 14); News-Press Pub. Shearer, 5 Med.L.Rptr. 1272 (Fla. 2d DCA 1979) (Error to exclude press from courtroom while juvenile witness in sex crime testifies and error to seal record from press).¶

Compare Miami Herald Pub. Co. Morphonios, 467 So.2d 1026 (Fla.1985) (Error to gag press from publishing testimony of minor witness via prerecorded video) and Thornton State, 585 So.2d 1189 (Fla. 2d DCA 1991) (Statute cannot override defendant’s Sixth Amendment right to public trial without case-by-case balancing test). See also Doe. Doe, 567 So.2d 1002 (Fla. 4th DCA 1990) (Affirming denial of motion to close proceedings in which mother seeks authority for surgical sterilization of mentally handicapped daughter).¶

FN4. Fla.Stat. § 92.55 (Authorizing the court to permit or prohibit “the attendance¶

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of any person at the proceeding”) (emphasis supplied).¶

FN5. See, e.g., Schmidt. State, 590 So.2d 404 (Fla.1991) (Father prosecuted for crime of video recording of minor daughter in violation of statute concerning depiction of sex acts); Sanders. State, 568 So.2d 1014 (Fla. 3d DCA 1990) (Father prosecuted for lewd and lascivious acts against minor daughter).¶

FN6. See, e.g., Zordan. Page, 500 So.2d 608 (Fla. 2d DCA 1987) (Suit by minor and parents against carrier for damages incurred when insured fondled private parts of minor plaintiff); Hennagan. Department of Highway Safety and Motor Vehicles, 467 So.2d 748 (Fla. 1st DCA 1985) (suit by minor and parents against FHP for damages when minor driver was allegedly sexually abused by patrolmen after being stopped on pretext of suspicion); Drake. Island Community Church, Inc., 462 So.2d 1142 (Fla. 3d DCA 1985) (Suit by minor and parents for damages from sexual abuse by teacher on minor pupil). Compare Freehauf. School Board of Seminole County, 623 So.2d 761 (Fla. 5th DCA)cause dismissed, 629 So.2d 132 (Fla.1994) (Suit for abuse inflicted on son by stepmother; failure to report suspected abuse by school); Fischer. Metcalf, 543 So.2d 785 (Fla. 3d DCA 1989) (Suit by minors against psychologist for damages from abusive father when suspicion of abuse was not reported).¶

The court concludes that it is not necessary to close this trial in order to comply with any public policy of the State of Florida.¶

The plaintiffs next argue that closure is necessary to serve the interest of innocent third parties whose privacy warrants closure under item (e) of Barron. The plaintiffs assert that each minor in this consolidated cause is a third party as to the other three actions and thus the trial should be closed to protect them as third parties in the consolidated cases. Having voluntarily joined to bring the action, they cannot claim to be third parties to the action nor assert a legitimate expectation of privacy in the disclosures that necessarily follow from their decision to act in concert.¶

Plaintiffs also assert the privacy interest of other minors who were victims of this same abuse but who have not joined in this suit. There is no evidence that trial of this case would implicate these third parties. In any event, plaintiffs lack standing to assert the interest of these third parties, and the Court will not decide any issue affecting their rights unless a party with standing raises the issue.¶

Finally, plaintiffs attempt to bring their motion under item (f) relating to the privacy interest of a party. To be entitled to an order of closure under this item, however, plaintiffs must show that closure is necessary “to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed.” 531 So.2d at 119.(emphasis added). Plaintiffs argue their identities are not inherent facts in the case and thus the trial should be closed to prevent revelation of the identity. However, plaintiffs also contend it will be impossible to try the case without revelation of their names. Their argument refutes itself. The identity of a party is inherent in the case, and that concern alone could not justify total closure. This argument is a proxy for the ineffective argument that the sensitive nature of inherent private facts should justify a private forum. Facts regarding abuse form the core of their case, and thus it “is an inherent part of these proceedings and cannot be utilized as a proper basis for closure.” 531 So.2d at 119. The decision to litigate this issue is tantamount to a decision to place the information before the public.¶

*7 As sympathetic as their claim is, it fails to state a cognizable reason for closure under the law. The¶

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request to close a civil trial because of a party’s disclosural concerns with facts inherent in the cause cannot be reconciled with Barron. Facts generally protected by a party’s privacy right are no longer protected from disclosure when they become an integral part of a civil proceeding. Indeed, plaintiffs’ argument for a private forum could be asserted as the basis for a wide array of exceptions that would swallow up the presumption of openness. “The … argument based on this interest therefore proves too much. [T]hat same interest could be relied upon to support an array of mandatory closure rules … proves too much, and runs contrary to the very foundation of the right of access…” Globe Newspaper Company. Superior Court, 102 S.Ct. 2613, 2622 (1982).¶

Accordingly, having considered the briefs and arguments of counsel for the reasons set forth in this opinion, it is ORDERED that the Motion to Close Trial be denied.¶

DONE AND ORDERED.¶

Fla.Cir.Ct.,1994.¶

John Doe-1 Through John Doe-4. Museum of Science and History of Jacksonville, Inc.¶

Not Reported in So.2d, 1994 WL 741009¶

(Fla.Cir.Ct.), 22 Media L. Rep. 2497¶

END OF DOCUMENT¶

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