The Brechner Report
Volume 20, Number 12
December 1996

A monthly report of mass media law in Florida

• R. Michael Hoefges
• Mary Gallant, Production Coordinator
• Michelle Mader, Prod. Assistant
• Bobbie Stewart, Prod. Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

Access Meetings
Litigation exemption applies to workers' comp cases
Closed city council meeting results in no charges
Second mistrial delays DeBord case
Commissioner will pay own legal fees

Access Records
AGO gives broad reading to victim records exemption
Town will reconsider flat fee for copies of records
State Supreme Court briefs available online

Courts
Ledger successful in unsealing state candidate's court file
Court denies request to seal discovery in tobacco lawsuit
Tapes sealed until trial in criminal case

Privacy
AIDS/HIV records allegedly misused

Reporter's Privilege
Judge releases reporter jailed for refusing to testify
Naples reporter must testify, judge says

News Notes
State Supreme Court briefs available on line

The Back Page
State courts need reminding about First Amendment

Judge releases reporter jailed for refusing to testify

MIAMI--A federal district judge in Miami granted a writ of habeas corpus releasing from jail Miami Herald reporter David Kidwell. Kidwell had been cited for contempt and sentenced by a Florida circuit court judge to 70 days in jail after Kidwell refused to testify at a deposition in a high-profile Palm Beach County murder case.

The writ entered by U.S. District Judge Wilkie D. Ferguson Jr. does not end the case because Kidwell's contempt judgment and sentence remain on appeal to the Florida 4th District Court of Appeal.

Kidwell turned to the federal court for relief after the 4th District refused to stay his sentence while his appeal is pending. The federal court had jurisdiction to enter the writ because Kidwell is challenging the contempt judgment and sentence on First Amendment grounds.

Judge Roger B. Colton, 15th Judicial Circuit, found Kidwell guilty of indirect criminal contempt in October after Kidwell refused to answer questions at a deposition in the prosecution of John Zile, who is accused of murdering his 7-year-old stepdaughter. (Brechner Report, October 1996) Prosecutors want to question Kidwell about his 1994 jailhouse interview with Zile. Statements made by Zile during the interview may differ from a taped confession that he gave to police.

Kidwell had served 14 days of the sentence before being released by Ferguson's order. (See related story, p. 4) (9/13/96-10/23/96) (Decisions on File, Kidwell v. McCutcheon, Case. No. 96-2888-CIV-FERGUSON, October 30, 1996)

Naples reporter must testify, judge says

NAPLES - A Naples Daily News reporter was ordered to testify for the defense in a triple murder trial but said she would rather go to jail.

Michelle Worobec was subpoenaed to testify in the trial of Charles Graves, one of two people accused of killing three Cracker Barrel restaurant employees during a robbery in 1995.

Worobec had interviewed Graves' co-defendant, who said the slayings were not planned. Graves' attorney, Stephen Grozoga, said the reporter's testimony could help clear his client of premeditated murder.

Worobec said at least one witness had said the same thing, making her testimony unnecessary. But Circuit Judge William L. Blackwell, 20th Judicial Circuit, refused to quash the subpoena, calling his decision a "no-brainer" because Worobec was not being asked to testify about information she had received in confidence.

The reporter said she worried that being forced to testify would damage her credibility as a fair and impartial news reporter. (10/10/96-10/11/96)

AIDS/HIV records allegedly misused

TAMPA - A Pinellas County Health Department worker was fired after he was accused of taking confidential lists of people with AIDS and HIV to a gay bar and offering to look up names for friends.

Copies of the computer disks containing the names and anonymous letters implicating William Calvert were sent to the department, The Tampa Tribune, and the St. Petersburg Times.

A class-action suit on behalf of people whose names are on the list has been filed by a St. Petersburg law firm. Meanwhile, the Centers for Disease Control and Prevention in Atlanta said Florida had the weakest procedures in the nation for handling HIV and AIDS information. (9/24/96-10/10/96)

Ledger successful in unsealing state candidate's court file

PLANT CITY - At the request of The (Lakeland) Ledger, County Judge William Fuente unsealed the criminal court file of Eugene L. Roberts, a state legislative candidate, concerning his arrest in 1994 on charges of disorderly conduct and resisting or opposing arrest without violence.

Court records that have been sealed generally may not be released to the public unless there is a showing of good cause that supports releasing the records.

The Ledger argued that the public has a right to know about criminal charges that have been filed against a candidate for political office. Fuente agreed that unsealing Roberts' file would serve the public's interest in being informed about a candidate for public office before the election.

Roberts pointed out to the judge that the media already had reported that he pleaded guilty to the charges and paid a $100 fine. He argued unsuccessfully that his file should remain off limits because there was nothing else for the public to know that had not been reported. (Decisions on File, Florida v. Roberts, Case No. 94-9638, Div. P, Sept. 27, 1996)

Court denies request to seal discovery in tobacco lawsuit

WEST PALM BEACH - A circuit court judge denied a request by tobacco companies for a blanket protective order sealing all documents produced during discovery in the state's tobacco liability lawsuit. In the action, the state is seeking reimbursement of approximately $2 billion in Medicaid costs spent on treating illnesses related to smoking.

In the ruling, retired Judge William Rutter, sitting in the 15th Judicial Circuit, relied on Florida law that requires discovery documents to be open unless closure is necessary to protect confidential information such as business or trade secrets.

The ruling by Rutter, who has been appointed to oversee the discovery matters in the complex case, means that discovery documents will be open for public inspection except for any specific documents that are closed by court order. Tobacco companies still could challenge the release of specific information or documents on these grounds.

In similar actions in other states, tobacco companies have been successful in obtaining blanket protective orders sealing all discovery, according to the Miami Daily Business Review. (10/4/96)

Tapes sealed until trial in criminal case

SANFORD - Audio and video tapes related to an unsuccessful murder-for-hire scheme will remain under wraps until the trial, a judge has ruled.

Circuit Judge Thomas G. Freeman, 18th Judicial Circuit, agreed to a defense motion for a protective order to prevent the tapes from being publicized. Freeman refused to allow The Orlando Sentinel and WESH-TV to argue that the tapes should be made available to the public.

An attorney for the newspaper and television station said he would advise his clients to appeal based on the judge's refusal to hear arguments from the media.

Former radio evangelist George Crossley is accused of trying to hire someone to kill a man who said Crossley was having an affair with the man' s wife. The Seminole County Sheriff's Office says it taped conversations between Crossley and an undercover agent posing as a hit man. (9/28/96)

Litigations exemption applies to workers' comp cases

TALLAHASSEE - In a recent opinion, Attorney General Bob Butterworth stated that the pending litigation exemption to the Open Meetings Law applies to a workers' compensation case in which a claim, known as a petition for benefits, has been filed by an injured employee.

Florida Statute section 286.011(8) allows a board or agency to meet in private with its attorney to discuss "pending litigation" in which the board or agency is a party. The discussion must be limited to "settlement negotiations or strategy sessions related to litigation expenditures."

A workers' compensation matter involving a state board or agency becomes "pending litigation" for purposes of the exemption once the injured employee files a petition for benefits, Butterworth wrote.

Butterworth also stated that a board or agency that meets privately to discuss a pending workers' compensation case may discuss the injured employee's confidential medical records obtained during the litigation if "necessarily related to settlement negotiations or to setting strategy for litigation expenditures."

However, Butterworth wrote in the opinion, the exemption requires that a transcript of a closed litigation meeting be released to the public once the litigation is concluded. The fact that confidential medical records have been discussed does not change that requirement, according to the opinion. (Decision on File, Fla. Atty. Gen. Op. (Sept. 30. 1996))

Closed city council meeting results in no charges

VERO BEACH - The State Attorney's Office decided not to take action after reviewing a citizen's complaint that the Vero Beach City Council violated the Open Meetings Law.

Real estate agent Frank Zorc claims that the city council met secretly on May 9, 1995, and discussed filing a claim in the Piper Aircraft Corp. bankruptcy proceedings. A chemical plume that originated on Piper property contaminated property leased by Zorc at the Vero Beach Municipal Airport.

Zorc claims that the May 9 meeting should have been open because a consent decree already had been entered by the judge in the bankruptcy case. Under an exemption to the Open Meetings Law, a city council may hold a closed meeting to discuss settlement negotiations or hold "strategy sessions related to expenditures" in connection with pending litigation to which the city is a party.

In a letter to Zorc, Assistant State Attorney Nikki Robinson stated that the consent decree was only the approval of a "tentative compromise" and just the "first step in resolving Piper's overall bankruptcy proceedings."

Last year, a grand jury cleared city officials of any wrongdoing in connection with three closed meetings held in 1995, including the May 9 meeting. Zorc filed a civil lawsuit in 1995 alleging that the city violated the Open Meetings Law. (Brechner Report, August 1995) (9/29/96-10/8/96)

Second mistrial delays DeBord case

COCOA - A second mistrial has delayed the case of a Cocoa council member accused nearly two years ago of violating the Open Meetings Law.

The trial of Ray DeBord was stopped Oct. 2 after it was learned that a juror and her mother had made disparaging remarks about the judge and the defense attorney to a state representative, the American Civil Liberties Union and the chief circuit judge while complaining about delays in the case.

DeBord was accused of calling Mayor Mike Hill to discuss city business. The council member said that Hill "entrapped" him by encouraging DeBord to call him.

An earlier trial ended in a mistrial when the jurors could not agree on a verdict. (Brechner Report, October 1995) The retrial was delayed when prosecutors sought an appeal of a ruling by Circuit Judge Martin Budnick, 18th Judicial Circuit, that threw out most of their evidence.

Budnick said that a U.S. Supreme Court ruling meant that tapes of the calls between DeBord and Hill could not be used in court because a violent crime was not alleged. A three-judge panel of circuit judges overturned Budnick. (9/2/96-10/3/96)

Commissioner will pay own legal fees

MIAMI - The Dade County Metro Commission voted to spend $16,771 in county funds for legal fees incurred by a commissioner who pleaded no contest last year to civil charges that he violated the Open Meetings Law. A week after the vote, however, the commissioner, Bruce Kaplan, agreed to pay the bills himself.

Kaplan was accused of meeting secretly in 1994 with commissioners Arthur E. Teele and Maurice Ferre and discussing the selection of a new manager for Dade County. Kaplan admitted that he met with Teele and Ferre, but denied any wrongdoing.

After pleading no contest to the charges, Kaplan paid a $500 fine. Teele and Ferre each paid a $250 fine to resolve similar civil charges against them. (Brechner Report, August 1995, June 1996)

Neither Teele nor Ferre asked the county to pay for their legal expenses. Ferre was one of the commissioners who voted in favor of the county paying for Kaplan's legal bills. Teele was not present for the vote. (10/9/96-10/17/96)

AGO gives broad reading to victim records exemption

TALLAHASSEE - Attorney General Bob Butterworth stated that a Public Records Law exemption for personal information about victims of certain crimes, including sexual assault, applies to all records in the possession of a state agency, not just to law enforcement incident reports.

Butterworth stated that the purpose of the exemption is victim protection, which would not be served if the exemption applied only to law enforcement records.

Under the exemption, Florida Statutes section 119.07(3)(s), victims of sexual battery, aggravated child abuse, aggravated stalking, harassment, aggravated battery and domestic violence may request in writing that their addresses, telephone numbers and information about their personal assets be sealed for five years after the request. (Decisions on File, Fla. Atty. Gen. Op. 96-82 (Oct. 10, 1996))

Town will reconsider flat fee for copies of records

CALLAHAN - The town of Callahan agreed to review its policy of charging $1 per page for copies of all public records after a weekly newspaper said the policy violated Florida's Open Records Law. After the Town Council adopted the policy, the Nassau County Record's managing editor pointed out that the Open Records Law sets the price of most copies at the actual cost of making them, or 15 cents per page.

Town Attorney Daniel Brim agreed that the town's policy appeared to be in violation of the Open Records Law after reviewing the Florida Statute section 119.07.

However, Callahan Mayor Danny Johnson said he was waiting for a second opinion from "the state" before recommending that the policy be dropped. (10/10/96)

State Supreme Court briefs available online

TALLAHASSEE - The Florida Supreme Court announced that most briefs filed with the court are available on line. Only briefs that are submitted on computer disk will be available, but that includes most briefs that are now being filed, according to a court official. The briefs in a case usually state the parties' legal arguments and cite legal precedent for the arguments. The site is located at the court's Internet website at: http://justice.courts.state.fl.us/courts/oacal.html (11/1/96) State courts need reminding about First Amendment For the second time in two years, a Florida court has jailed a reporter for doing his job. But Miami Herald reporter David Kidwell may not have served jail time in vain. On October 21, a United States District Court judge ordered Kidwell's release from the Palm Beach County jail. Kidwell had served 14 days of a 70-day sentence for refusing to testify about a jailhouse interview with accused child-murderer John Zile. (See related story, p. 1) Like Stuart News reporter Tim Roche before him (Brechner Report, November 1990, December 1991-January 1992, June 1992, July 1992, August 1992, January 1993, March 1993), Kidwell fell victim to a line of cases that began in 1990 with Miami Herald v. Morejon. (Brechner Report, June 1990) In Morejon, a three-judge panel of the Third District Court of Appeal -- later affirmed by the Supreme Court of Florida -- held that the reporter's privilege did not insulate a journalist from testifying if the reporter was an "eyewitness to a relevant event." Since Morejon, other decisions have further limited the reporter's privilege. In Gold Coast Publications, decided only months before Kidwell was jailed, the Fourth District Court of Appeal took the holding of Morejon -- that there is no reporter's privilege if a reporter is an "eyewitness" -- and converted it into a legal rule that there is no reporter's privilege except to withhold a confidential source or confidential information. (Brechner Report, May 1996) In other words, reporters have no protection from subpoenas seeking to have them testify about the vast majority of their reporting. Gold Coast treated the reporter's privilege as if the Florida courts gave it, and the Florida courts could take it away. Gold Coast ignored dozens of state and federal cases holding that the reporter's privilege was a First Amendment-protected right, one that the Florida courts cannot take away, and are indeed sworn to uphold. In the Kidwell case, the trial court judge ruled that he was bound to follow the high-level appellate precedent of Gold Coast. But the United States District Court judge in Miami who ordered Kidwell freed, Wilkie Ferguson Jr., brings unusual experience to bear on Kidwell's case. Ferguson, then a judge on the Third District Court of Appeal of Florida, was one of the three judges who decided Morejon. In his relatively new appointment, as a federal judge with the authority to overrule any number of state court judges, Ferguson has ruled that the Morejon decision was never intended to signal the beginning of the end of the reporter's privilege, as Florida state courts have held. On the contrary, Ferguson ruled that the absence of a confidential source "is irrelevant to the chilling effect enforcement of [reporter] subpoena[s] would have on information obtained by a journalist in his professional capacity." Ferguson ordered Kidwell freed while Kidwell's appeals make their way through the Florida court system. Now Kidwell's appeal is in the Florida Fourth District Court of Appeal, and could reach the Florida Supreme Court. Meanwhile, Ferguson has retained jurisdiction over Kidwell's federal action until the appellate process is completed in the Florida state courts. At that time, if the Florida courts order Kidwell to complete the 56 days remaining of his sentence, Ferguson will review whether their decision violates the First Amendment to the United States Constitution. Everyone in Florida who appreciates good journalism should watch the Kidwell case closely. Kidwell's jailing and the federal court review it has spawned might lead to the restoration of the reporter's privilege. Robert Rivas, a Boca Raton lawyer, filed briefs in the Gold Coast and Kidwell cases on behalf of the Reporters Committee for Freedom of the Press as a "friend of the court."

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