author: STRINGER, Judge.

text:
    Robert W. VOLLMER, Appellant, v. KEY DEVELOPMENT PROPERTIES, INC., an Indiana corporation, f/k/a Key Financial Corp., Appellee.
    Nos. 2D06-4161, 2D06-5714.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2007.

      Rodney L. Salvati, Venice, for Appellant.
    Robert W. Vollmer, pro se.
    William E. Stockman of DeBoest, Stock-man, Decker, Broughton & Hagan, P.A., Fort Myers, for Appellee.
   STRINGER, Judge.

This is the latest appeal in a ten-plus-year mortgage foreclosure action brought by Key Development Properties against Robert Vollmer. In this appeal, Vollmer seeks review of two orders that disbursed funds held in the court registry to Key Development. Vollmer argues that the trial court denied him due process when it entered each order. We agree and reverse.

Background Facts

This case began as a mortgage foreclosure action filed by Key Development on a mortgage with a face value of $72,828.50. It ultimately blossomed into a six-count complaint by Key Development with a fifteen-count counterclaim by Vollmer. After extensive proceedings in the trial court and in this court, the case proceeded to a jury trial. On April 2, 2004, following the jury trial, the trial court entered a final judgment that awarded Key Development $162,738.21 on its claims and Vollmer $25,566.49 on his counterclaims based in part on the jury’s verdict and in part on directed verdicts entered by the trial court. The trial court also reserved jurisdiction to consider Key Development’s claims for attorney’s fees and costs. On April 5, 2004, Vollmer paid $120,645.15 into the registry of the court in an effort to satisfy a portion of the final judgment. Vollmer then appealed the final judgment to this court. This court subsequently affirmed the final judgment. Vollmer v. Key Dev. Props., Inc., 908 So.2d 1073 (Fla. 2d DCA 2005) (table decision).

During the pendency of that appeal, the trial court entered an order finding Key Development entitled to an award of attorney’s fees and costs. After mandate issued from this court, the trial court held a hearing on the amount of fees and costs reasonably incurred by Key Development. At the conclusion of that hearing, the trial court entered a “Supplemental Final Judgment in Foreclosure and for Assessment of Reasonable Attorney’s Fees” on April 27, 2006. This supplemental final judgment “reaffirmed and ratified” the final judgment dated April 2, 2004. It also calculated the postjudgment interest due to Key Development as of April 27, 2006, and determined the amount of attorney’s fees, interest on attorney’s fees, and costs due to Key Development. According to the supplemental final judgment, the amount due to Key Development as of that date was $395,912.24. No calculation was made in the supplemental final judgment of the postjudgment interest due to Vollmer on the counterclaims on which he prevailed. The supplemental final judgment set the foreclosure sale of Vollmer’s property for May 31, 2006.

The foreclosure sale was subsequently stayed by this court when Vollmer filed a petition for writ of certiorari. After this court denied Vollmer’s petition on June 23, 2006, the foreclosure sale was rescheduled for August 23, 2006.

During late June and early July 2006, Vollmer and his counsel contacted Key Development’s counsel on several occasions seeking a determination of the redemption amount that Vollmer needed to pay to redeem his property and cancel the foreclosure sale. Counsel for Key Development refused to provide a redemption amount to Vollmer or his counsel. On August 3, 2006, Vollmer appeared at the Clerk of Court’s office seeking to pay into the court registry the amount needed to redeem his property and cancel the foreclosure sale. Personnel in the Clerk’s office contacted counsel for Key Development seeking a redemption amount. Counsel for Key Development refused to provide the Clerk with this information. Ultimately, the Clerk made a rough calculation of the redemption amount based on the daily interest figures included in the supplemental final judgment. Based on the Clerk’s calculations, Vollmer paid $410,774.74 into the registry of the court to redeem his property. Thus, as of August 3, 2006, there was $531,419.89 in the court registry to satisfy the supplemental final judgment in favor of Key Development.

On August 7, 2006, Vollmer filed a motion seeking to be permitted to withdraw the $120,645.15 that he had paid into the registry of the court back in April 2004. On August 11, 2006, Key Development filed a motion seeking an order directing the Clerk to disburse $405,500.12 to it from the registry in satisfaction of the supplemental final judgment. Key Development asserted that the additional $9587.88 that it sought was for additional interest, attorney’s fees, and costs that had accrued since entry of the supplemental final judgment on April 27, 2006. The trial court held a hearing on these motions on August 22, and subsequently granted in part Vollmer’s motion to withdraw the funds deposited in April 2004. The trial court also granted Key Development’s motion in part and directed the clerk to disburse $404,698.24 to Key Development. The trial court took Key Development’s motion under advisement to the extent that it sought additional attorney’s fees and requested that Key Development file a memorandum of law within ten days concerning its entitlement to those amounts.

On September 13, 2006, without having filed the memorandum requested by the court, Key Development filed a motion seeking an order directing the Clerk to disburse the balance of the funds in the registry of the court to it. Key Development set this motion for hearing on October 23, 2006, without clearing the hearing time with Vollmer.

On September 29, 2006, Vollmer filed a “Notice of Unavailability,” in which he asserted that he would be out of the state on October 23, and in which he requested that the court cancel the October 23 hearing and reschedule it to a date on which he would be available. There is no indication in the record that Vollmer set this motion for hearing.

On October 23, the trial court went forward with the hearing on Key Development’s motion without Vollmer present. The trial court subsequently granted Key Development’s motion in part and entered an order on November 3, 2006, directing the Clerk to disburse an additional $3452.30 to Key Development and the remaining $47.60 to Vollmer.

In these consolidated appeals, Vollmer seeks review of both orders disbursing funds to Key Development. As to each order, Vollmer contends that the trial court denied him due process by preventing him from having any meaningful participation in the hearings. We address each order in turn.

August 29, 2006, Order

Vollmer first contends that the trial court denied him due process by refusing to allow him to participate in the evidentia-ry hearing held on August 22, 2006, which resulted in the August 29 order that disbursed $404,698.24 to Key Development. We agree.

The transcript of the August 22 hearing shows that Vollmer was representing himself at that time. The trial court began by hearing from Key Development’s counsel in what was, in essence, an opening statement. The trial court then allowed Key Development to call one of its attorneys as a witness. The trial court then called, as court witnesses, personnel from the Clerk’s office to testify concerning the calculation of the redemption amount.

Throughout the hearing, Vollmer repeatedly requested that he be permitted to testify, that he be permitted to cross-examine Key Development’s witnesses, and that he be permitted to argue his position to the court. The trial court repeatedly assured Vollmer that he would be permitted to do all of these things “later.” However, the trial court released the witnesses ■without permitting Vollmer to cross-examine them and then engaged in a discussion with only “us legally trained types” concerning the calculation of the redemption amount. When Vollmer again requested the opportunity to cross-examine Key Development’s witness, the court told' Vollmer that it would not allow him to do so because “you’re going to want to cross-examine about a lot of things that are not related to this issue today.” The trial court then entered the order disbursing funds based solely on what Key Development represented was the amount owed to it. The trial court never allowed Vollmer to testify, never allowed Vollmer to cross-examine any of the witnesses, and never allowed Vollmer to argue his position.

As Vollmer properly points out, the constitutional guarantee of due process requires that each litigant be given a full and fair opportunity to be heard. County of Pasco v. Riehl, 635 So.2d 17, 18 (Fla.1994); E.I. DuPont De Nemours & Co. v. Lambert, 654 So.2d 226, 228 (Fla. 2d DCA 1995); Edelman v. Breed, 836 So.2d 1092, 1094 (Fla. 5th DCA 2003). The right to be heard at an evidentiary hearing includes more than simply being allowed to be present and to speak. Baron v. Baron, 941 So.2d 1233, 1236 (Fla. 2d DCA 2006). Instead, the right to be heard includes the right to “introduce evidence at a meaningful time and in a meaningful manner.” Id. (quoting Brinkley v. County of Flagler, 769 So.2d 468, 472 (Fla. 5th DCA 2000)). It also includes the opportunity to cross-examine witnesses and to be heard on questions of law. Baron, 941 So.2d at 1236. The violation of a litigant’s due process right to be heard requires reversal. Riehl, 635 So.2d at 18; E.I. DuPont De Nemours & Co., 654 So.2d at 228.

Here, the transcript of the evi-dentiary hearing demonstrates that the trial court refused to permit Vollmer to participate in the hearing in any meaningful way. While the trial court repeatedly assured Vollmer that he would be allowed to participate, it- ultimately ruled without allowing him to do so. We understand the trial court’s concern that the hearing be limited to the issues raised by the motions set for hearing; however, the trial court may not refuse to permit a pro se litigant to participate in a hearing simply to foreclose the possibility of collateral matters being raised. The trial court’s actions in doing so in this case constituted a deprivation of Vollmer’s due process rights.

In this appeal, Key Development argues that any error by the trial court was harmless because the trial court’s entry of this order was simply a ministerial act. Key Development is correct that the amounts awarded in the supplemental final judgment were conclusive and that Vollmer could not use the hearing on the motion to disburse funds as an opportunity to relitigate the merits of that judgment. See, e.g., Provident Nat’l Bank v. Thunderbird Assocs., 364 So.2d 790, 794 (Fla. 1st DCA 1978) (“No attack having been made on the final judgment of foreclosure, upon it becoming final the obligations between the parties, insofar as the mortgage foreclosed was concerned, became fixed.”). Key Development is also correct that it was entitled to disbursement of the amount awarded to it in the supplemental final judgment plus accrued interest. The problem is that the August 29 order disbursed more than that amount to Key Development.

At the hearing, Key Development argued that it was entitled to an order disbursing $395,912.24 plus the postjudgment interest that had accrued since entry of the supplemental final judgment on April 27, 2006. However, Key Development failed to tell the trial court that Vollmer had prevailed on some of his counterclaims and had been awarded $25,566.49 on one of those counterclaims. The judge presiding over this hearing was a successor judge who admitted on the record that he was not familiar with all of the issues surrounding the supplemental final judgment. Because the trial court refused to allow Vollmer to speak, he was unable to alert the trial court to the amount due to him under the supplemental final judgment. Thus, the trial court was led into disbursing the gross amount of the judgment entered in favor of Key Development rather than the net amount of the judgment due to it after the offset for Vollmer’s recovery on his counterclaims. This resulted in an overpayment to Key Development of $25,566.49. Therefore, contrary to Key Development’s arguments, the error in denying Vollmer his due process rights was not harmless.

The trial court’s error in denying Vollmer his due process right to be heard at the August 22 hearing requires us to reverse the August 29 order. On remand, the trial court shall order Key Development to pay the $25,566.49 overpayment it received back into the court registry and shall order that those funds be disbursed to Vollmer. In addition, Vollmer is entitled to postjudgment interest on this overpayment at the statutory rate from the date the overpayment was actually disbursed to Key Development until the date the funds are paid back into the court registry. Thus, the trial court shall calculate the amount of postjudgment interested owed to Vollmer and shall enter judgment in favor of Vollmer for that amount.

November 3, 2006, Order

Vollmer next contends that the trial court denied him due process by holding the hearing on Key Development’s motion to disburse the remainder of the funds in the court registry in Vollmer’s absence. We agree on this point as well.

At the August 22 hearing, Key Development requested that it be awarded post-judgment attorney’s fees and costs for the time its counsel spent litigating the disbursement issue. The trial court refused to rule on this request, instead telling Key Development that it was “willing to take a memorandum. of law” on the issue of whether Key Development was entitled to additional attorney’s fees. The court expressed serious reservations concerning this request because of Key Development’s outright refusal to provide a redemption amount to either Vollmer or the Clerk when specifically asked. The court asked for a memorandum “within ten days” on the issue of whether Key Development could properly refuse to provide a redemption amount in the face of specific requests for that information.

On September 13, 2006, without having filed the memorandum requested by the court, Key Development filed a motion seeking disbursement of the remainder of the funds in the court registry to satisfy its claim for these as yet unadjudicated attorney’s fees and costs. Key Development set the hearing on this motion for October 23 without clearing the hearing time with Vollmer. The notice of hearing was served on Vollmer on September 18, 2006.

On September 29, 2006, Vollmer filed a pleading entitled “Notice of Unavailability.” In this “notice,” Vollmer asserted that he was unavailable for the hearing until after November 27, 2006, due to a “continued family emergency, prior out of town commitments and the search for a new attorney.” Vollmer then requested that “this court cancel the hearing date of October 23, 2006, until a later date after November 27, 2006.” Despite this notice, the trial court went ahead with the hearing as scheduled, presumably taking evidence on the issue of Key Development’s claim for additional postjudgment attorney’s fees and costs and entering an order disbursing additional funds to Key Development. Thus, while the trial court never explicitly ruled on Vollmer’s motion to continue, it effectively denied that motion when it held the hearing in Vollmer’s absence.

Although trial courts are endowed with rather broad discretion in deciding whether to grant or deny a motion for continuance, the exercise of that discretion is not absolute. We are charged with the task of reviewing a court’s decision on a continuance motion and setting it aside if we determine the trial court abused its discretion. This court considers certain factors in making that determination, including 1) whether the mov-ant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted.

Myers v. Siegel, 920 So.2d 1241, 1242 (Fla. 5th DCA 2006) (internal citations omitted). It is generally reversible error to refuse to grant a motion for continuance when a party or his counsel is unavailable for physical or mental reasons, which unavailability prevents fair and adequate presentation of the party’s case. A.P.D. Holdings, Inc. v. Reidel, 865 So.2d 682, 683 (Fla. 4th DCA 2004); Lopez v. Lopez, 689 So.2d 1218, 1219 (Fla. 5th DCA 1997); Ziegler v. Klein, 590 So.2d 1066, 1067 (Fla. 4th DCA 1991); see also Thompson v. Gen. Motors Corp., 439 So.2d 1012, 1013 (Fla. 2d DCA 1983) (holding that it was an abuse of discretion to refuse to grant continuance when attorney’s illness prevented his appearance at trial).

Under the facts of this case, the trial court’s de facto denial of Vollmer’s motion to continue constituted an abuse of discretion. First, there is some evidence that the underlying cause for the motion was unforeseen by Vollmer. The trial court had told Key Development that it wanted a memorandum of law within ten days of the August 22 hearing explaining why Key Development was entitled to additional attorney’s fees and costs. Key Development did not file such a memorandum. Thus, Vollmer had no reason to expect that Key Development would file a motion and set a hearing on its request for additional attorney’s fees when Key Development had not complied with the trial court’s request for a memorandum of law on the issue. Vollmer also had no reason to expect that Key Development would set the matter for hearing without attempting to clear the hearing time with him. Moreover, Vollmer had explained to the trial court at the August 22 hearing that his father, who lived out of state, had suffered a medical emergency that required Vollmer to be out of state, and this was reiterated in his motion to continue. Thus, it was not unforeseen to Key Development that Vollmer might be out of state on the date of a hearing it chose to schedule unilaterally-

Second, it is clear that Vollmer was prejudiced by the trial court’s decision to hold the hearing in his absence. Because Vollmer was not present at the hearing, he was, once again, denied his due process right to cross-examine Key Development’s witnesses and to testify on his own behalf. He was also denied the opportunity to be heard on the disputed legal issue of whether Key Development was entitled to additional attorney’s fees. At the close of the hearing, the trial court awarded Key Development an additional $3452.30 without any input from Vollmer. The prejudice to Vollmer on these facts is patent.

Third, there is nothing in the record to show that Key Development would have been prejudiced by a one-month delay in this hearing. The litigation had been ongoing for almost ten years at the time of the hearing. Key Development had received over $400,000 less than two weeks before the motion for additional disbursements was filed and less than two months before the hearing was held. Key Development cites to nothing in the record to show that it would have been prejudiced by a brief delay to allow Vollmer to attend the hearing.

In its brief to this court, Key Development asserts that the continuance was properly denied due to Vollmer’s “dilatory tactics.” However, nothing in the record shows that Vollmer engaged in any “dilatory tactics,” particularly as related to this motion. The allegations of “dilatory tactics” are not supported by evidence sufficient to warrant the complete denial of Vollmer’s due process right to be heard before having additional damages awarded against him.

Given these facts, the trial court abused its discretion in holding the October 23 hearing in Vollmer’s absence. This is particularly true in light of the trial court’s previously stated reservations, with which we are inclined to agree, concerning whether Key Development was entitled to any additional attorney’s fees when it had incurred those fees solely because of its own refusal to cooperate. Accordingly, we reverse the November 3 order that resulted from the October 23 hearing and remand for reconsideration after a new hearing that accords Vollmer the due process to which he is entitled.

Reversed and remanded with instructions.

CASANUEVA, J., and DAKAN, STEPHEN L., Associate Senior Judge, concur.

      . Nothing in the limited record before this court explains how Vollmer calculated this amount. The net judgment due to Key Development under the final judgment dated April 2, 2004, was $137,171.72 ($162,738.21-$25,566.49).

      . The difference between the amounts deposited in the registry and the amounts disbursed represent the Clerk's registry fees.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GANG OF FIVE, INC., a Florida corporation, Petitioner, v. 5 POINTS THEATRE BUILDING, LLC, a Florida limited liability company, Respondent.
    No. 1D07-4768.
    District Court of Appeal of Florida, First District.
    Oct. 22, 2007.
    Paul M. Harden and D.R. Repass, Jacksonville, for Petitioner.
    Stephen D. Busey and James A. Bolling of Smith, Hulsey & Busey, Jacksonville, for Respondent.
   PER CURIAM.

DENIED. See Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1995).

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


author: BELANGER, ROBERT E., Associate Judge.

text:
    Ornando WESBY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3024.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2007.
    Rehearing Denied Nov. 16, 2007.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   BELANGER, ROBERT E., Associate Judge.

Ornando Wesby appeals his conviction and sentence for failure to register as a sexual offender in violation of sections 943.0435(4) and 943.0435(9), Florida Statutes. Specifically, he claims that the trial court erred in failing to grant his motions for judgment of acquittal.

At trial, the parties stipulated that Wes-by was a sexual offender. The evidence revealed that Wesby applied for, and received, an identification card at the DMV, which reflected that he had changed his address. When an officer went to the new address to verify Wesby’s residence, the officer learned that Wesby did not reside there. After the state rested its case, Wesby moved for a judgment of acquittal, arguing that the state did not prove that he failed to register as a sex offender. The motion was denied. After Wesby rested his case without putting on any evidence, he again moved for a judgment of acquittal, arguing that he did not violate the plain language of the statute because he registered with the DMV. The court again denied the motion.

Wesby argues that the state failed to prove a violation of the statute as alleged in the information. We find that the information was adequate, as it referenced a specific section of the criminal code which sufficiently detailed all of the elements of the offense. Fulcher v. State, 766 So.2d 243 (Fla. 4th DCA 2000); DuBoise v. State, 520 So.2d 260 (Fla.1988); see also Cotton v. State, 395 So.2d 1287, 1289 (Fla. 1st DCA 1981) (“An information which is sufficient in other respects is not invalidated by reason of the fact that it is inartfully drawn.”).

With respect to Wesby’s remaining claims, we find that there is competent, substantial evidence to support the conviction. Fitzpatrick v. State, 900 So.2d 495, 507 (Fla.2005); Hudson v. State, 939 So.2d 146 (Fla. 4th DCA 2006).

Affirmed.

SHAHOOD, C.J., and STEVENSON, J., concur.


text:
    D.C., the natural parent, Appellant, v. DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 4D07-2038.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2007.
    Andrew A. Holness of Andrew A. Holness, P.A., Fort Lauderdale, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Children’s Legal Services, Fort Lauderdale, for appellee.
   PER CURIAM.

D.C. appeals an order adjudicating her minor children dependent and an order requiring her to submit to a psychological evaluation.

We affirm both the order adjudicating D.C.’s minor children dependent and the trial court’s ruling that D.C. shall submit to a psychological evaluation. However, the order for D.C.’s psychological evaluation must be reversed because it fails to specify the “time, place, manner, conditions, and scope of examination.”

Florida Rule of Juvenile Procedure 8.250(b) requires that an order to submit to a psychological evaluation specify the “time, place, manner, conditions, and scope of the examination”. See § 39.407(15), Fla. Stat. (2006) (requiring that the procedures set out in the Florida Rules of Juvenile Procedure be followed when issuing an order to submit to a psychological evaluation). Here, the order states that “D.C. shall complete a psychological evaluation” and does not specify “time, place, manner, conditions, and scope of the examination”. Thus, the trial court erred because its order does not comply with the requirements of rule 8.250(b).

Therefore, upon remand, consistent with this opinion, the trial court shall amend the order requiring D.C. to submit to a psychological evaluation.

Affirmed in Part, Reversed in Part, and Remanded.

GUNTHER, WARNER and GROSS, JJ., concur.


author: HAZOURI, J.

text:
    Carl M. COLLIER, Appellant, v. Bradley BOHNET, Joseph Lauria and Elizabeth Lauria, Appellees.
    No. 4D06-4294.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.

      Arthur J. Morburger, Miami, and Carl M. Collier, Lake Worth, for appellant.
    William G. Shofstall, West Palm Beach, for appellee Bradley Bohnet.
   HAZOURI, J.

Carl M. Collier appeals the trial court’s granting of Bradley Bohnet’s motion for summary judgment denying him entitlement to additional attorney’s fees. We reverse and remand.

Collier, a licensed attorney, represented Bohnet in an action for damages against Joseph and Elizabeth Lauria regarding termite damage in the home they sold to Bohnet. The representation agreement provided for a hybrid contingency fee; $100.00 per hour plus a contingency fee of thirty percent of any recovery. Collier proceeded to pursue the case on Boh-net’s behalf and shortly before the case was to go to jury trial, he withdrew for medical reasons, which he contends precluded him from trying the case. Following Collier’s withdrawal, Bohnet hired a new attorney who Bohnet alleges performed substantial work preparing the matter 'for trial and was paid approximately $11,000.00 for his services. Eventually, Bohnet and his new counsel settled the case.

Subsequently, Collier filed a motion for entitlement to attorney’s fees, and the parties filed cross-motions for summary judgment on the issue of entitlement. Specifically, Collier argued he was owed a balance of $1,376.00 in hourly fees, and thirty percent of the settlement as a contingency fee, pursuant to a representation agreement between Collier and Bohnet.

The trial court granted Bohnet’s motion for summary judgment, denied Collier’s motion for summary judgment, and entered a judgment stating that Collier is not entitled to the additional fees he seeks, under the authority of Faro v. Romani, 641 So.2d 69, 71 (Fla.1994) (holding that when an attorney withdraws from representation upon his own volition, and the contingency has not yet occurred, the attorney forfeits all rights to compensation, unless the client’s conduct makes the attorney’s continued performance either legally impossible or causes the attorney to violate an ethical rule). The trial court erred in determining that Collier’s withdrawal was voluntary as a matter of law because there were genuine issues of material fact that could not be determined by way of summary judgment.

Therefore, upon remand, the trial court should conduct an evidentiary hearing to determine if Collier’s withdrawal was required by Rule 4-1.16(a)(2) of the Rules Regulating the Florida Bar, which provides in pertinent part:

[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client....

R. Regulating Fla. Bar 4-1.16(a)(2). If the trial court concludes that Collier’s withdrawal was voluntary, as Bohnet claims, then Collier is precluded from any additional fees, other than the $1,376.00 for hourly work which remains unpaid. Should the trial court determine that Collier’s withdrawal was involuntary, it should make a determination based upon quantum meruit as to additional fees, if any, earned by Collier. In assessing any additional attorney’s fees, the trial court should take into account the amount of attorney’s fees paid to Bohnet’s new attorney and in no instance shall Bohnet be responsible for fees, which, in total, exceed his original fee agreement with Collier.

Reversed and Remanded.

KLEIN, J. and EMAS, KEVIN M., Associate Judge, concur.

      . "The standard of review of an order granting summary judgment is de novo.” Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). The parly moving for summary judgment has the burden of proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). "If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury [or in the instant case the judge as the trier of fact] as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (citations omitted).


author: SHAHOOD, C.J.

text:
    John TESTERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-217.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, C.J.

The defendant appeals his conviction and sentence for aggravated battery based on erroneous jury instructions on the defense of self-defense. We agree and reverse and remand for a new trial.

This case involved a confrontation in a bar in which the defendant threw a full beer bottle at the victim. The defendant argued that his action was in defense of himself to protect against a physical attack from the victim, who was walking toward him after a racially-heated verbal exchange.

At closing arguments, the defense argued that the defendant’s actions were justified. A person is justified in using non-deadly force if (a) he or she reasonably believes that such force is necessary to (b) prevent imminent death or great bodily harm. § 776.012, Fla. Stat. (2006). The defense explained that the State must prove that the defendant was not acting in defense of himself or another beyond all reasonable doubt. The State objected and the trial court sustained the objection, believing that the obligation was on the defense. In rebuttal argument, the prosecutor argued over objection that the defendant has the burden to prove the two required elements of self-defense. After closing arguments, the trial court instructed the jury that the defendant would be justified in using non-deadly force “if the following two facts are proven beyond a reasonable doubt.” Several sentences later, the trial court contradicted itself by stating that “If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.”

It is well-established that the burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self defense. Jenkins v. State, 942 So.2d 910, 914 (Fla. 2d DCA 2006). A misstatement to the jury of an affirmative defense is error and may amount to fundamental error. For example, in Murray v. State, 937 So.2d 277 (Fla. 4th DCA 2006), an unobjected to instruction on self-defense was found to be reversible error. In Murray, the trial court submitted written jury instructions to the jury which stated “the Defense must prove the following two elements beyond a reasonable doubt” while orally instructing the jury that if they had “a reasonable doubt on the question of whether or not the defendant was justified in the use of [deadly force] ... you should find the defendant not guilty.” Id. at 280. This court found that the incorrect reasonable doubt instruction, as well as the lower court’s contradictory instructions, amounted to fundamental error. Id. at 281.

As in Murray, the conflicting instructions on the defense of self-defense may have led the jury to find the defendant guilty because he did not prove the elements of the defense beyond a reasonable doubt. The case must be returned for a new trial. The judgment is reversed.

Reversed and Remanded.

FARMER and TAYLOR, JJ., concur.


author: CALOGERO, Chief Justice, JOHNSON, J., TRAYLOR, Justice, KIMBALL, J., TRAYLOR, J., KNOLL, J.,

text:
    STATE of Louisiana v. Edward HARRIS.
    No. 2007-KD-1735.
    Supreme Court of Louisiana.
    Sept. 21, 2007.
   CALOGERO, Chief Justice,

concurs in the denial of the writ application and assigns the following reasons.

I,In this case, the defendant has filed a pre-trial motion seeking to bar the prosecution from exercising during jury selection at a third trial any of its peremptory strikes statutorily authorized by La.Code Crim. Proc. art. 799. The defendant contends that the procedure set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), is inadequate to protect his due process rights and that, given a hearing, he will be able to establish that there is a long history on the part of this prosecutor of peremptory strikes against African-American prospective jurors based improperly on race. The trial court has to this point denied the defendant’s effort to have a hearing conducted on his motion to bar the prosecution from exercising peremptory strikes against African-Americans during jury selection. | ?Accordingly, there is no record evidence on which to conclude that the defendant has made an insufficient showing to support his motion.

While this court has not yet considered or sanctioned the remedy the defendant seeks, the issue of whether the state, on a showing of past discriminatory strikes, may be barred pre-trial from exercising its statutorily-authorized peremptory strikes has certainly been contemplated as a remedy in the face of persistent unconstitutional discrimination against prospective jurors on the basis of race. See Flowers v. State, 947 So.2d 910 (Miss.2007); see also Batson, 476 U.S. at 105, 108, 106 S.Ct. 1712 (Marshall, J., concurring) (“[mjerely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge”; “only by banning peremptories entirely can such discrimination be ended”); Miller-El v. Dretke, 545 U.S. 231, 273, 125 S.Ct. 2317, 2344, 162 L.Ed.2d 196 (2005) (Breyer, J., concurring)(believing it “necessary to reconsider Batson’s test and the peremptory challenge system as a whole”); Swain v. Alabama, 380 U.S. 202, 244, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)(Goldberg, J., dissenting) (“Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former.”).

Consequently, it is my view that the trial court, if it chooses, may yet conduct a pretrial hearing on the alleged systematic and purposeful exclusion of potential jurors historically by this same prosecutor on the basis of race. It may well be that the trial court would be of the view that judicial economy is better served by conducting a hearing prior to the commencement of trial, rather than doing so during voir dire with prospective jurors on hold. And the trial court could well hear evidence that Iswould lead it either to bar the prosecutor from exercising his statutory peremptory strikes against prospective African-American jurors, or after commencement of trial at such time as the prosecution were to peremptorily strike one or more prospective African-American jurors, to determine the merits of any challenge to the strike under Batson and La.Code Crim. Proc. art. 795 C. In any case, the evidence the defendant seeks to introduce appears to be admissible, in my view, because the defendant in establishing his Batson challenge may rely on “all relevant circumstances” to raise an inference of purposeful discrimination, and the trial court has a duty under Batson “to assess the plausibility” of the prosecutor’s proffered reason for striking a potential juror “in light of all evidence with a bearing on it.” See State v. Snyder, 98-1078, pp. 8-9 (La.9/6/06), 942 So.2d 484, 490 (quoting Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)).

JOHNSON, J.,

concurs in the denial of the writ application with reasons.

bThe purposeful discriminatory use of peremptory challenges to strike African Americans from a jury violates the defendant’s constitutional rights, and undermines the public confidence in our judicial process.

However, I am unaware of any procedure which would allow for a pre-trial hearing on a Batson challenge, prior to the voir dire process. See my dissent in State v. Snyder, 98-1078 (La.9/6/06), 942 So.2d 484, 490.

TRAYLOR, Justice,

provides additional concurring reasons.

liThe Chief Justice appears to be in favor of allowing a pre-trial hearing to determine whether the judge and prosecutor should be required to follow well-established law.

KIMBALL, J.,

concurring in the denial of the writ application.

liThe defendant fails to suggest any reason why the state should be prohibited from exercising its statutory right to peremptory challenges under La.C.Cr.P. art. 799. There is no basis to suggest that a constitutional violation will occur in the selection of a jury when voir dire has not yet commenced. The defendant does nothing to show that the protections of Batson and La.C.Cr.P. art. 795 C are ineffective in protecting his rights against discriminatory peremptory challenges on the basis of race.

JOHNSON, J., concurs in the denial of the writ and assigns reasons.

TRAYLOR, J.,

concurring in the denial of the writ application.

liThe defendant fails to suggest any reason why the state should be prohibited from exercising its statutory right to peremptory challenges under La.C.Cr.P. art. 799. There is no basis to suggest that a constitutional violation will occur in the selection of a jury when voir dire has not yet commenced. The defendant does nothing to show that the protections of Batson and La.C.Cr.P. art. 795 C are ineffective in protecting his rights against discriminatory peremptory challenges on the basis- of race.

Additional concurring reasons: The Chief Justice appears to be in favor of allowing a pre-trial hearing to determine whether the judge and prosecutor should be required to follow well-established law.

KNOLL, J.,

concurring in the denial of the writ application.

It The defendant fails to suggest any reason why the state should be prohibited from exercising its statutory right to peremptory challenges under La.C.Cr.P. art. 799. There is no basis to suggest that a constitutional violation will occur in the selection of a jury when voir dire has not yet commenced. The defendant does nothing to show that the protections of Batson and La.C.Cr.P. art. 795 C are ineffective in protecting his right against discriminatory peremptory challenges on the basis of race.

      . The defendant’s convictions for first degree murder and his sentence of death were previously reversed and a new trial ordered by this court on the basis that the prosecutor, by striking a prospective African-American juror solely on the basis of race, violated federal constitutional equal protection rights of both the defendant and the excused venirepersons. State v. Harris, 01-0408 (La. 6/21/02), 820 So.2d 471. The defendant's second trial ended in a mistrial.

      . In Batson, the United States Supreme Court held that the Equal Protection Clause forbids the use of peremptory strikes to challenge potential jurors solely on account of their race or on the assumption that members of a certain race will be unable to impartially consider the case before them. The court concluded that such discriminatory practices in the use of peremptory challenges denies a defendant equal protection of the law and unconstitutionally discriminates against the potential juror in violation of the Fourteenth Amendment. 476 U.S. at 84-89, 106 S.Ct. at 1716-19.


author: VICTORY, J. JOHNSON, Justice

text:
    Jennifer Devall COPELAND v. Alvin C. COPELAND.
    No. 2007-CC-0177.
    Supreme Court of Louisiana.
    Oct. 16, 2007.

      Correro, Fishman, Haygood, Phelps, Walmsley & Casteix, James Richard Swanson, Loretta Gallaher Mince, Lance C. McCardle, New Orleans, for applicant.
    Stone, Pigman, Walther, Wittmann, Philip A. Wittmann, Daria, B. Diaz, New Orleans, Magee & Devereux, Mary Cle-menee Devereux, Covington, Lowe, Stein, Hoffman, Allweiss & Hauver, Robert Charles Lowe, Suzette Marie Smith, New Orleans, Joseph Marc Vezina, for respondent.
   VICTORY, J.

hWe granted this writ application to address whether the trial court, on remand, abused its discretion in sealing certain documents in the Copeland divorce/custody case. After reviewing the record and the applicable law, we reverse the judgment of the trial court and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

The divorce proceedings between Jennifer Devall Copeland and Alvin Copeland (the “Copelands”) sparked the interest of the Times-Picayune, L.L.C. newspaper (the “Times-Picayune”). The Copelands filed a Joint Motion to Seal the Record, which the trial court granted. The Times-Picayune intervened, seeking to unseal the entire record. The trial court denied the newspaper access by ruling that the Times-Picayune could not intervene and ordering that the entire record remain sealed. The court of appeal also denied the Times-Picayune access, stating that “on the showings made, we find no error” in the trial court’s ruling. Copeland v. Copeland, 06-0713 (La.App. 1 Cir. 4/27/06). This Court granted the Times-Picayune’s writ application and held that “the judgment of the trial court sealing the entire record is vacated and set aside.” Copeland v. Copeland, 06-1023 (La.6/2/06), li>930 So.2d 940 (“Copeland /”). We remanded the case to the trial court to conduct a new hearing on the parties’ motion to seal consistent with the following reasoning:

Considering the strong constitutional bias in favor of open access by the public to court proceedings, we find the trial court’s blanket order sealing the entire record in this case to be overbroad. Although there may be some justification for sealing certain sensitive evidence in a proceeding, the parties have the burden of making a specific showing that their privacy interests outweigh the public’s constitutional right of access to the record. The trial court, should it grant such relief, must ensure that its order is narrowly tailored to cause the least interference possible with the right of public access.

Id. at 941.

In accordance with this ruling, the trial court conducted a hearing on July 5, 2006 on the Copeland’s motion to seal the record. After the hearing, the court issued a Judgment and Written Reasons for Judgment that left all of the substantive pleadings in the case, except Mrs. Copeland’s initial Petition for Divorce, under seal. The substantive pleadings under seal are as follows: A1 Copeland’s Answer and Re-conventional Demand and supporting affidavits, filed March 30, 2006; Jennifer De-vall Copeland’s Answer to Reconventional Demand, filed April 4, 2006; Joint Stipulation, filed April 4, 2006; two Consent Judgments, entered on February 17, 2006 and April 4, 2006; and a Judgment of Divorce entered April 4, 2006. In support of its ruling, the trial court stated as follows:

In this case the sealing of the record is meant to protect the children from the public, to shield them from the embarrassment, ridicule, and derision of their peers and from unwanted scrutiny of unscrupulous strangers whose knowledge of the finer details of the children’s custody and visitation arrangements .might enable them to do the children harm.

The court of appeal denied the Times-Picayune’s writ application. Copeland v. Copeland, 06-1941 (La.App. 1 Cir. 12/28/06). We granted the Times-Picayune’s writ application to consider whether the trial court complied with our ruling in Copeland I. Copeland v. Copeland, 07-0177 (La.3/23/07), 951 So.2d 1102.

J^BISCUSSION

Although there is no express federal constitutional provision providing for access to judicial records and proceedings, as early as 1947, the United States Supreme Court held that “a trial is a public event [and][w]hat transpires in the court room is public property.” Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. 1596 (1947). In 1978, the Court also recognized that the public has a right to inspect and copy public court records. Nixon v. War ner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978).

Unlike the federal constitution, the Louisiana Constitution has an “open courts” provision, providing that “[a]ll courts shall be open ...” La. Const, art. I, § 22. LCiting this provision, we have held that “[ojpenness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.” State v. Birdsong, 422 So.2d 1135, 1137 (La.1982) (citing Gannett, supra, 443 U.S. at 383, 99 S.Ct. 2898).

In addition, Article 12, § 3 of the Louisiana Constitution provides that “[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” Louisiana’s Public Records Law contains a broad definition of public records and numerous specific exceptions to this law. La. R.S. 44:l(A)(2)(a) (defining “public records” as “[a]ll books, records, writings ... having been used, ... or retained for use in the conduct, transaction, or performance of any business ... under the authority of the constitution or the law of this state ... ”); La. R.S. 44:31 (mandating that “[ejxcept as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record”); see also La. C.C.P. art. 251 (providing that “[ejxcept as otherwise provided by law, [the clerk of court] shall permit any person to examine, copy, photograph, or make a memorandum of any of these records at any time during which the clerk’s office is required by law to be open”).

Recognizing the public’s right of access to public records is of constitutional dimension, we held in Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984),e that the right of the public to have access to mortgage and conveyance records on file with the clerk of court “is a fundamental right, and is guaranteed by the constitution.” We further held:

The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights.

Id. Since Title Research Corp., we have reaffirmed that “the public has a constitutional right of access to court records.” Copeland I, supra, 930 So.2d at 941 (citing Title Research Corp., supra); In re John Doe, 96-2222 (La.9/13/96), 679 So.2d 900, 901(holding that “[a]s a general rule, pleadings filed in this Court are public records and are not subject to being sealed.”)

However, the fact that a document is filed in the court record does not necessarily mean that it will be accessible by the public. In commenting on a court’s power to restrict the public’s access to court records, the United States Supreme Court held that “the right to inspect and copy judicial records is not absolute” and that “every court has supervisory power over its own records and files, and [that] access has been denied where court files might have become a vehicle for improper | fipurposes.” Nixon, supra, 435 U.S. at 599, 98 S.Ct. 1306. The Court declined to “identify all the factors to be weighed in determining whether such access is appropriate,” but recognized that “the discretion as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. As we held in Bester v. Louisiana Supreme Court Committee on Bar Admissions, 00-1360 (La.2/21/01), 779 So.2d 715, 721, regardless of the fact that the public records law does not contain any specific exceptions for records and documents maintained by this Court, this Court has a “constitutional, inherent duty and responsibility to regulate all facets of the practice of law,” which includes “the right to determine when and under what circumstances sensitive materials under our exclusive superintendency and control should be shielded from disclosure.”

A trial court’s discretion in exercising this right often comes in the form of sealing all or part of a court record. Although Louisiana has no specific statutory provision allowing trial courts to seal court records, general provisions exist under which trial courts exercise this power. For instance, Louisiana Code of Civil Procedure article 191 provides that “a court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.” In addition, La. C.C.P. art. 1631(A) provides that “[t]he court has the power to require that the proceedings shall be conducted with dignity and in an orderly and 17expeditious manner, and to control the proceedings at the trial, so that justice is done.”

In this case, the trial court treated the motion to seal as a motion for protective order pursuant to La. C.C.P. art. 1426. This article pertains to discovery and provides ' that upon motion, the court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” However, this relatively low standard is only applicable to discovery materials, and does not apply to motions to seal documents contained in the court’s public record. Courts and commentators have increasingly recognized that there is no presumptive right to public access to discovery materials, as discovery rules allow for broad and searching review of a party’s files and review of these materials traditionally takes place in private and the documents may never be presented to, or introduced in, a court. George F. Carpinello, Public Access to Court Records in New York: The Experience under Uniform Rule 216.1 and the Rule’s Future in a World of Electronic Filing, 66 Alb. L.Rev. 1089, 1095-96. In contrast, documents filed with the court are presumptively relevant to the court’s determination and their placement in the public record, which is in control of the parties, puts them in the public sphere. That is not to say that they cannot be taken out of the public sphere by the trial court upon a motion to seal, it is just that, because they are now public records, the standard from taking them out of the public’s view is higher than that provided by La. C.C.P. art. 1426 relative to discovery materials. Thus, the trial court erred in treating this motion to seal as a motion for protective order under La. C.C.P. art. 1426. A party’s claim of mere “annoyance, embarrassment, oppression, or undue burden or expense” is not enough to overcome the public’s right of access to public records.

|RAs stated earlier, Louisiana has a constitutional open courts provision and a constitutional public records provision. Further, no state statute excepts divorce proceedings from either provision. While La. Ch.C. art. 407 provides that proceedings before the juvenile court, with certain exceptions, “shall not be public,” the law contains no such provisions with regard to divorce or child custody proceedings which would take such proceedings outside the scope of Art. 1, § 22 or Art. 12, § 3. Likewise, La. C.C. art. 135, which provides that “[a] custody hearing may be closed to the public,” provides no basis for closing the courts in this case, as there was no “custody hearing” involved. Thus, as we inherently held in Copeland I, this constitutional right of access extends to civil divorce proceedings. Copeland, supra at 941.

However, that being said, even without a statute exempting certain court proceedings and documents from public review, the constitutional right of access is not unlimited. Article 1, § 5 of the Louisiana Constitution, which provides, in part, that “[ejvery person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy,” protects certain documents and information from disclosure. We have defined the right to privacy as “the right to be ‘let alone,’ ... and to be free from ‘unnecessary public scrutiny.’ ” DeSalvo v. State, 624 So.2d 897, 901 (La.1993), cert. denied, 510 U.S. 1117, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994). In Bester, supra, we noted that, in addition to the specific statutory exceptions found elsewhere, the protection provided by Art. I, § 5 has prevailed over the public’s right to know and has protected certain documents and information from disclosure. Bester, supra at 720 (citing Trahan v. Larivee, 365 So.2d 294 (La.App. 3 Cir.1978), writ denied 366 So.2d 564 (La.1979)).

l9We have also “defined the limits on the right to privacy [as follows]: ‘the right to privacy is not absolute; it is qualified by the rights of others ... The right of privacy is also limited by society’s right to be informed about legitimate subjects of public interest.’ ” Plaquemines Parish Comm. Council v. Delta Development Co., Inc., 472 So.2d 560, 567-68 (La.1985) (citing Parish Nat’l Bank v. Lane, 397 So.2d 1282, 1286 (La.1981)). As this Court pointed out in Lane, “[ijndividuals involved in civil litigation may be compelled to give evidence which tends to embarrass them or to produce documents of a confidential nature.” 397 So.2d at 1286.

In the context of divorce proceedings, commentators have noted that other state courts have handled access to divorce proceedings in different ways:

Some courts have applied the common-law rule to prevent those not having a legitimate interest in the divorce proceedings from having access to the entire record, while other courts cited statutes mandating the sealing of divorce records. In some cases involving the custody of children, courts have denied access to the divorce records to protect the children. Courts have also held a number of documents and types of information not to be subject to disclosure in relation to divorce proceedings, including financial information and paternity results. Furthermore, a state court may seal the record until the divorce decree has been entered in order to encourage conciliation.
Recently, however, the practice of closing divorce proceedings has been changing to allow the public more access in divorce cases. Privacy interests no longer mandate closure of these proceedings in many jurisdictions, although they are still relevant in balancing the interests involved in disclosure. When all factors are equal, the right of access will prevail despite the parties’ privacy interests. Several courts have also permitted access to records obtained in divorce proceedings, including financial information. Moreover, the salaciousness of the details in the divorce records has not been sufficient by itself to prevent disclosure in some states.

Peltz, Leonard, and Andrews, supra at 608 (cites omitted).

Because Louisiana law provides a constitutional right of access to public records and a constitutional open courts provision, and because there is no statutory |inIaw exempting divorce records and proceedings from this right of access, a balancing test must be employed. Thus, in this case, we framed the balancing test to be undertaken by the trial court in analyzing the competing constitutional rights as follows:

Considering the strong constitutional bias in favor of open access by the public to court proceedings, we find the trial court’s blanket order sealing the entire record in this case to be overbroad. Although there may be some justification for sealing certain sensitive evidence in a proceeding, the parties have the burden of making a specific showing that their privacy interests outweigh the public’s constitutional right of access to the record. The trial court, should it grant such relief, must ensure that its order is narrowly tailored to cause the least interference possible with the right of public access.

Copeland, supra at 941. This balancing test properly subjects the parties’ request to have the record sealed to the trial court’s discretion, which has supervisory power over its own records and files, placing the burden of proof on the parties seeking closure, and balancing the parties’ privacy interests against the public’s constitutional rights of access to court proceedings and documents.

At the hearing on remand on the joint motion to seal, counsel for the Copelands urged their concern for the emotional well being of their children, as well as their physical safety, alluding that the sealed documents contained the custody arrangements and the financial arrangement between the Copelands. That was basically the extent of their showing that “their privacy interests outweigh[ed] the public’s constitutional right of access to the record.” M Based upon that showing, the trial court again sealed the record, with the exception of one pleading, finding that “sealing the record is meant to protect the children from the public, to shield them from embarrassment, ridicule, and derision of their peers and from the unwanted scrutiny of unscrupulous strangers whose knowledge of the finer details of the _JiJchildren’s custody and visitation arrangements might enable them to do the children harm.”

We agree that the Copelands have a constitutionally protected privacy interest relating to the safety and protection of their children. This privacy interest is both subjective and objective, in that an expectation in the protection and safety of the children of divorcing parents is “of a type which society at large is prepared to recognize as being reasonable.” Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979 (La.7/1/97), 696 So.2d 562, 566. If disclosure of certain information would imperil the safety of the Copeland children, then the Copeland’s interest in keeping this information private would outweigh the public’s right of access to this information.

Thus, we have reviewed the sealed documents to determine if they contain any information which would jeopardize the children’s safety, such that the children’s privacy interests outweigh the public’s right of access to the court’s records. Upon review, we find that these documents do contain general information about custody and financial arrangements regarding the children, but that the vast majority of the | ^information, if released, would not impinge on the safety or security of the children. In fact, the custody information is not specific enough to inform anyone where the children might be at any particular time. As we ordered in Copeland I, if relief was to be granted because a privacy interest was shown that outweighed the public’s constitutional right of access to the record, it must be “narrowly tailored to cause the least interference possible with the right of public access.” Id. The court’s order sealing six of the seven substantive pleadings filed in the case was not “narrowly tailored” and is once again too broad. Redaction of the record, rather than sealing, is the appropriate method of protecting the children in this case. Accordingly, we order the entire record unsealed, with redaction of the following information: (1) the name of the children’s school; and (2) the location of the family home.

DECREE

For the reasons stated herein, the judgment of the trial court is reversed and the case is remanded for further proceedings in accordance with this ruling.

REVERSED AND REMANDED.

JOHNSON, J., concurs and assigns reasons.

JOHNSON, Justice

concurring in the result:

hDoes a litigant abandon all privacy rights when a lawsuit is filed in the court system?

Historically, court proceedings and records have been open and available to the public. The First Amendment of the United States Constitution guarantees the press the right to report judicial records. See, Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla.8/25/88); State ex. rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 816 N.E.2d 213 (Ohio 9/23/04); Lutz v. Lutz, 20 Media L. Rep. 2029, 1992 WL 440989 (Mich.Cir.Ct.1992); See also, Restricting Public Access to Judicial Records of State Courts, 84 ALR 3d 598 (1978), which suggests that the First Amendment has been held not to give the press a greater right of access to judicial records than the public generally. Grand Forks Herald, Inc. v. Lyons, 101 N.W.2d 543 (N.D.1960). The United States Supreme Court explained that “public access ... is one of the numerous checks and balances of our system, because contemporaneous review in the | ¡Jorum of public opinion is an effective restraint on possible abuse of judicial power.” Richmond Newspapers, Inc. v. Va., 448 U.S. 555, 592, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).

The significance of the public’s right of access is to enhance the public’s trust in the fairness of the judicial system, to promote public participation in the workings of government, and to protect the constitutional guarantees of freedom of press and a defendant’s right to a fair trial.

The framers of the Louisiana Constitution were equally clear in expressing the public’s right of access to the courts in LSA-Const. Art. I, § 22, which provides that “All courts shall be open ... ”. The public’s right of access to public records is further guaranteed by the Louisiana Constitution in LSA-Const. Art. XII § 3, which provides that:

No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.

|sThe drafters of the Constitution intended “to establish a presumption in favor of openness, except where a specific statutory limitation was created.” St. Mary Anesthesia Associates, Inc. v. Hospital, 01-2852 (La.App. 1 Cir. 12/20/02), 836 So.2d 379, 383, writ denied, 03-0220 (La.3/28/03), 840 So.2d 577. The purpose of LSA-Const. Art. XII § 3 is to ensure the public’s right of access to deliberations of public bodies and to protect the public from secret decisions made without the opportunity for public input.

This right of access to courts applies equally to all cases, including divorce cases, in order to ensure that proceedings are conducted fairly to all concerned, to satisfy the people’s right to know what happens in their courts, and to serve as a check on corrupt practices by exposing the judicial process to public scrutiny. See, Globe Newspaper Co. v. U.S., 517 U.S. 1166, 116 S.Ct. 1564, 134 L.Ed.2d 664(1996) (Mem).

Under the Public Records Doctrine, “public records” is defined in LSA-R.S. 44:1(2) as:

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of any ordinance, regulation, mandate, or order of any public body ..., except as otherwise provided in this Chapter or as otherwise specifically provided by law.

14This Court has already determined that “court records” falls within the definition of “public records” under the Public Records Act. See, Title Research Corpora tion v. Rausch, 450 So.2d 933, 937(La.1984). Any person of the age of majority may inspect, copy, or reproduce or obtain a reproduction of any public record. LSA-R.S. 44:31.

While the constitutional right of access to court records is broad, it is not absolute. The Louisiana Constitution empowers the legislature to establish exceptions to this right to access public documents. Kyle v. Perrilloux, 02-1816 (La.App. 1 Cir. 11/7/03), 868 So.2d 27. When there is a request for public records, the individual challenging the disclosure must prove that there is a reasonable expectation of privacy to prevent the disclosure of the information. Capital City Press, 96-1979 (La.7/1/97), 696 So.2d 562, 566; East Bank Consolidation Special Service Fire Protection Dist. v. Crossen, 04-838 (La.App. 5 Cir. 12/28/04), 892 So.2d 666, writ denied, 05-212 (La.4/1/05), 897 So.2d 608.

In determining whether the sealing of a record is appropriate, a court must first determine whether there is a privacy interest. If the court finds that there exists a reasonable expectation of privacy, then, it must weigh or balance the public’s right to know against the privacy interest. Capital City Press, supra. To determine whether there is a privacy interest, the court must consider not only whether the person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society, at large, is prepared to recognize as being reasonable. Id., (quoting State v. Ragsdale, 381 So.2d 492, 497 (La.1980)); Hilbun v. State ex rel. Div. of Admin., 98-1993 (La.App. 1 Cir. 11/5/99), 745 So.2d 1189.

|BLSA-Const. Art. I § 5 provides, in pertinent part, that:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.

See, Bester v. La. Supreme Court, 00-1360 (La.2/21/01), 779 So.2d 715, 720 (La.1979); State v. Perry, 610 So.2d 746, 755-56 (La.1992).

Although the law in most states favors the openness of court proceedings, most states close, or limit access to the proceedings for “good cause shown.” The public and the press have been excluded where the testimony of the defendant or witnesses was of a nature that it could not be freely and completely presented to the public | ^without serious detrimental effects to the “fair trial” concept; where the testimony involved trade secrets; where the best interests of a child demand protection; and in juvenile proceedings. The United States Supreme Court has recognized that parties may have privacy interests in the information produced during the litigation, which should be protected by ensuring confidentiality when the parties can demonstrate good cause for doing so.

There are many reported instances where the court records of a divorce proceeding have been sealed to the public.

17Hugh Alan Ross writes in Closing Divorce Trials and Records: A Specific Proposal, 14 Cap. U.L.Rev. 81, 93 (1984-85), that there are three basic reasons to seal record and hearings in divorce proceedings:

1)The concept of family privacy not only enjoys constitutional protection, but has intrinsic value and deserves protection by the state which creates the divorce process.
2) If divorce cases are not sealed the openness of the process tends to exacerbate the already bitter and emotional nature of the proceeding, by inviting false or exaggerated charges of misconduct, or the malicious revelation of private matters.
3) The openness of the existing process has a chilling effect, because prospective litigants may prefer to suffer wrongs in silence rather than expose intimate details of family life to public view.

|sThe parent-child relationship, a constitutionally protected relationship, comes under scrutiny by the court in any divorce case in which there are children. The courts have noted that information discovered in a divorce proceeding can be used to embarrass or threaten a child. Our role as a court is to perform a balancing exercise, weighing issues of confidentiality and the citizen’s privacy interests, against freedom of speech and the public right to be informed on matters of public interest. The right to inspect judicial records should not trump the individual’s privacy rights, especially where the purpose is to gratify spite, promote public scandal, or to publicize the embarrassing details of a divorce case. Nixon v. Warner Communications, 435 U.S. 589, 598, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978).

Redaction of the record is an alternative to closing the proceeding and sealing the entire record from the public. The New Hampshire Supreme Court ordered financial affidavits disclosed subject to redac-tions when a member of the public requested access to court records filed under seal. In Douglas v. Douglas, 146 N.H. 205, 772 A.2d 316 (2001), where Douglas argued that the threat of identity theft supported non-disclosure of the financial affidavits, the court held that financial affidavits were not exempt from public disclosure. In that case, the court redacted certain information | ^‘cognizant of the privacy interests of the parties” to guard against any potential misuse. Id. at 208, 772 A.2d 316.

However, in Associated Press, et al. v. State of New Hampshire, 153 N.H. 120, 888 A.2d 1236 (2005), the New Hampshire Supreme Court struck down a statute, which automatically sealed financial affidavits in domestic relations cases, on the grounds that the state interest in protecting citizens from identity theft was not narrowly tailored. Id. at 1253. In 2003, the Connecticut Law Tribune, an ALM Media publication, discovered a “super-secret docketing system” that permitted prominent individuals involved in divorce cases and other civil matters to receive special treatment. As a result of the controversy, the Connecticut judiciary set standards for closing hearings and sealing records, requiring the judge to articulate the reasons for such actions. Id.

In Firestone v. Time, Inc., 271 So.2d 745 (Fl.1972), a divorced wife sued a magazine for defamation when the magazine published an article stating that her divorce was granted on grounds of “extreme cruelty and adultery.” The court held that the article, although noteworthy because one of the parties had received nationwide publicity, was not constitutionally protected as relating to matters of real public concern. The court distinguished between mere curiosity or the “intrigue with scandal or with potentially humorous misfortune of others” and real public concern, noting that public concerns are matters relating to public, private, or governmental affairs, of|inpublic officers, public servants, employees or candidates for public office. Id. at. 748. The court also noted that if a public figure is a subject of public interest, the figure cannot suddenly become less so merely because a private interest is involved. Id. at 749. The court further noted that a public figure is one who makes his living by dealing with the public or otherwise seeks public patronage, i.e., consciously wants the public support for his activities; therefore, he “submits his private character to the scrutiny of those whose patronage he implores.” Id. at 750.

In the case sub judice, Mr. Copeland, in my view, is a “public figure,” subject to public scrutiny. Unfortunately, the former Mrs. Copeland, by her marriage to a public figure, is subject to the same public scrutiny of their private affairs. Therefore, the spouses’ privacy interests do not outweigh the strong fundamental right of the public to access the court’s records.

However, in this case, there are minor children, whose interests are definitely involved in this proceeding. The minor children cannot be described as “public figures.” As the trial court correctly stated, the court has a duty to act as a fiduciary on behalf of the minor children, as their safety may be compromised by disclosure of certain sensitive information in a divorce/custody matter.

After reviewing the sealed documents, it is my opinion that there is nothing unusually private about these documents, as they contain usual information. The [^safety interest and security of the children should be this Court’s primary focus. Where appropriate, instead of sealing the record, the court may order that certain information be redacted from the record so as not to intrude on the public’s right of access and at the same time protect the person’s privacy interest. Doe v. Shady Grove Adventist Hospital, 89 Md.App. 351, 598 A.2d 507 (1991).

Recognizing that the public has no right to access the whereabouts of the children, I would redact the information regarding the children’s school and the children’s residence address. In all other respects, I would deny the Motion to Seal Court Records.

      . The Supreme Court’s jurisprudence on these issues is summarized as follows. In Nixon, supra, a case involving the press’s right of access to tapes that had been admitted into evidence in the Watergate trial, the Court held that "the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” 435 U.S. at 597, 98 S.Ct. 1306. In Nixon, the Court expressly rejected the idea that the press had a First Amendment right to inspect and copy the tapes, holding that the press did not have a right of access superior to that of the general public. 435 U.S. at 608-611, 98 S.Ct. 1306. In Gannett, Co. v. DePasquale, the Court appeared to be split on whether the press had a First Amendment right to access pretrial hearings. 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). One year later, in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Court held that the First Amendment included a right to attend criminal trials. However, the plurality’s seven separate opinions created confusion about the definition and scope of that right. In Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), involving the mandatory closure of a rape trial Juring a minor’s testimony, the Court held that mandatory closure violated the First Amendment right of access. The Court recognized that the right of access was not absolute and set forth that the closure must be necessitated by a compelling governmental interest, and must be narrowly tailored to serve that interest. 457 U.S. at 607, 102 S.Ct. 2613. See also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("Press-Enterprise I”) (finding a First Amendment right of access to criminal pretrial jury selection and holding that the strict scrutiny test applied to attempts to close jury selection). The last word from the Supreme Court on this issue came from Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) ("Press-Enterprise II ”), where the Court, relying on "experience and logic,” held that the public has a qualified First Amendment right of access to preliminary hearings in a criminal case. Commentators have remarked that the lack of clear guidelines in the field of public access had led to confusion and inconsistent outcomes by lower courts. Richard J. Peltz, Joi L. Leonard, Amanda J. Andrews, The Arkansas Proposal on Access to Court Records: Upgrading the Common Law with Electronic Freedom of Information Norms, 59 Ark L.Rev. 555 (2006).

      . Not all states have open court provisions in their constitutions. Those others that do provide a variety of access rights ranging from a qualified right to a nearly absolute right: Ala.Const. art. I, § 13; Colo. Const. art. II, § 6; Conn. Const. art. I, § 10; Del. Const. art. I, § 9; Fla. Const. art. I, § 21; Idaho Const. art. I, § 18; Ind. Const. art. I, § 12; Ky. Const. § 14; Miss. Const. art. III, § 24; Mont. Const. art. II, § 16; Neb. Const. art. I, § 13; N.C. Const. art. I, § 18; N.D. Const, art. I, § 9; Ohio Const, art. I, § 16; Okla. Const, art. II, § 6; Or. Const, art, I, § 10; Pa. Const, art. I, § 11; S.D. Const, art. VI, § 20; Tenn. Const, art. I, § 17; Tex. Const, art. I, § 13; Utah Const, art. I, § 11; W.Va. Const, art. Ill, § 17; Wyo. Const, art. I, § 8.

      .Federal courts have differing views on what constitutes a "judicial record.” The Seventh Circuit Court of Appeals has held that judicial records are not limited to evidence but applies to anything the court relied on to determine substantive rights. Smith v. U.S. District Court for the Southern District of Illinois, 956 F.2d 647, 650 (7th Cir.1992). Accord F.T.C. v. Standard Financial Management Co., 830 F.2d 404, 409, 412-13 (1st Cir.1987). The Sixth Circuit has held that a transcript that had not been admitted into evidence was not a judicial record. U.S. v. Beckham, 789 F.2d 401, 411 (6th Cir.1986). The Third Circuit held that documents submitted to the court but not physically on file with the court and returned to the parties after closure of the case were not judicial records. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781-82 (3rd Cir.1993). Finally, the Second Circuit has held that the mere filing of a document is insufficient to make it subject to a presumption of access; the court must actually rely on that document in the course of performing its judicial functions. United States v. Amodeo, 44 F.3d 141 (2nd Cir.1995); United States v. Amodeo, 71 F.3d 1044 (2nd Cir.1995).

      . The Court did specifically note that "common-law right of inspection has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal through the publication of the painful and sometimes disgusting details of a divorce case.’ ” Id. (Cites omitted).

      . See Peltz, Leonard, and Andrews, supra at 591-603 for a discussion of the various approaches state courts have used in determining the right of access to judicial proceedings, applying either the common law, their constitutions, the U.S. Constitution, and state statutory law to determine the right of access.

      . The trial court seemed to excuse this lack of proof, stating "I understand the position, it's hard to argue, articulate the need for privacy without letting the cat out of the bag.”

      . Capital City Press involved a newspaper's right of access to resumes for public employment. We held that "Article I, Section 5 of the Constitution applies only where one has a reasonable expectation of privacy in the matter sought to be protected.” Further, we held that "[t]he test for determining whether one has a reasonable expectation of privacy which is constitutionally protected 'is not only whether that person had an actual or subjective expectation of privacy, but also whether that expectation is of a type which society at large is prepared to recognize as being reasonable.' ” Id. at 566, 567 (citing State v. Ragsdale, 381 So.2d 492, 497 (La.1980); State v. Harper, 27, 278 (La.App. 2 Cir. 8/23/95), 660 So.2d 537, 547, writ denied, 95-2318 (La. 1/12/96), 666 So.2d 320). We held that an applicant for public employment had no constitutionally protected right to privacy in his resume because statutory law did not exempt such resumes from the public records law and because "the resumes at issue have not been shown to contain facts which would expose the applicants to public disgrace or would intrude upon the applicant's seclusion, solitude, or private affairs.” Id. at 568-69. Thus, there was no need to balance the conflicting constitutional rights in that case. Id.

      . On the other hand, Mr. Copeland has made no showing that he has a expectation of privacy in his financial information that is constitutionally protected or that would outweigh the public’s right of access to this information.

      . United States v. Hickey, 767 F.2d 705, 708 (10th Cir.1985).

      . William v. Stafford, 589 P.2d 322, 325 (Wyo.1979).

      . Globe Newspaper v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980);

      . This access to court proceedings and court records applies in all cases except juvenile proceedings which remain closed to the public in order to protect the juveniles involved. LSA-Ch.C. Art. 407.
      LSA-Ch.C. Art. 412 provides that:
      Records and reports concerning all matters or proceedings before the juvenile court, except traffic violations, are confidential and shall not be disclosed except as expressly authorized by this Code. Any person authorized to review or receive confidential information shall preserve its confidentiality in the absence of express authorization for sharing with others.
      [Emphasis added.]

        . This Court held that the right of privacy is not absolute, yet it is qualified by the rights of others and also limited by society's right to be informed about legitimate subjects of public interests. Plaquemines Parish Commission Council v. Delta Development Company, Inc., 472 So.2d 560 (La.1985).
      Only Louisiana. Montana, New Hampshire, and North Dakota provide explicit constitutional right of access provisions in the state constitution. See, Larry M. Elison and Deborah E. Elison, Comments on Government Censorship and Secrecy, 55 Mont. L.Rev. 175, 189 (1994).

      . Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986).

      . A case worth noting is Estate of Hearst, 67 Cal.App.3d 777, 136 Cal.Rptr. 821 (1977), where the court rejected the newspaper’s argument that the court’s order sealing the probate files of this well-known family constituted a prior restraint on their First Amendment rights to gather and publish information in the public domain. The court held that the order to seal did not operate as a prior restraint, since neither the press nor the reporters were named in the protective order and thus, were not directly restrained from publishing information.
      In C. v. C, 320 A.2d 717, 84 A.L.R.3d 581 (Del.Supr.1974), the court held that where a newspaper requested to inspect the divorce records of an elected state official, the constitutional provision guaranteeing freedom of press to every citizen who undertakes to examine the official conduct of those acting in a "public capacity” was not abridged by a restriction of access in matters of divorce.
      In Davis v. Davis, 107 N.Y.S.2d 460 (N.Y.Sup.1951), affd., 279 A.D. 865, 110 N.Y.S.2d 904 (N.Y.A.D. 1 Dept.1952), the press was granted the right to fully report the matters appearing in a public court record where the husband in a separation action sought to have the court seal his divorce record since the record would portray the parties’ marital problems and present the wife in an unfavorable light. In Tomlinson v. Tomlinson, 338 Mich. 274, 61 N.W.2d 102(Mich.1953), the court sealed in a divorce proceeding all documents relating to the husband’s financial status where the husband maintained that until the divorce decree was granted his privacy should be protected.

      . Globe Newspapers Co., 457 U.S. at 606-08, 102 S.Ct. 2613.

      . Megapulse Inc. v. Lewis, 672 F.2d 959 (D.C.Cir.1982).

      . Whitney v. Whitney, 164 Cal.App.2d 577, 330 P.2d 947 (1958).

      . In re Gault, 387 U.S. 1, 25, 87 S.Ct. 1428, 1442, 18 L.Ed.2d 527(1967).

      . Seattle Times Co. v. Rhinehardt, 467 U.S. 20, 24-25, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).

      . In In re Caswell, 27 L.R.A. 82, 18 R.I. 835, 29 A. 259 (1893), where a reporter requested to inspect and copy all of the proceedings in a divorce matter, the court held that:
      ... no one has a right to examine or obtain copies of public records, for mere curiosity, or for the purpose of creating public scandal. To publicly broadcast the painful ... details of a divorce case not only fails to serve any useful purpose in the community, but ... directly tends to the demoralization and corruption thereof, by catering to a morbid craving for that which is sensational and impure.

        Id. at 259.
      In Holcombe v. State ex. rel. Chandler, 240 Ala. 590, 200 So. 739 (1941), a newspaper sought to copy all the records in a divorce matter, the court noted that although the newspaper has a right to' inspect public records to acquire material for the purposes of selling news, that right does not extend to the records of a divorce case.
      In Tomlinson v. Tomlinson, 338 Mich. 274, 61 N.W.2d 102 (1953), the court determined that the husband should not be required to subject his financial affairs to public scrutiny. In Peyton v. Browning, 541 So.2d 1341 (Fla. DCA 1989), where creditors sought access to the husband's financial affidavit in the sealed divorce file, the court held that the husband’s privacy rights as it related to his financial records outweighed the private party’s right to access the record.
      In Katz v. Katz, 356 Pa.Super. 461, 514 A.2d 1374 (1986), the Pennsylvania Superior Court considered the propriety of a trial court's decision to hold proceedings on the economic aspects of a divorce (“equitable distribution”) in open court as requested by Mrs. Katz, rather than in closed session as requested by Mr. Katz. The appellate court overruled that trial court and closed the hearing, acknowledging the general right of access to divorce proceedings and the need to show good cause to close such proceedings. The court noted that:
      Trials of divorce issues frequently involve painful recollections of a failed marriage, details of marital indiscretions, emotional accusations and testimony which if published, could serve only to embarrass and humiliate the litigants. While the public has a right to know that its courts of justice are fairly carrying out their judicial functions, no legitimate public purpose can be served by broadcasting the intimate details of a soured marital relationship. Similarly, the public can have little, if any, legitimate interest in identification, evaluation, and distribution of private property which the marriage partners have accumulated while they lived together and cohabitated. Merely because ... property has been accumulated because of the financial successes achieved by an astute businessman does not alone justify opening equitable distribution hearings to the public.

        Id. at 1379-80.
      In contrast, Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988), the Supreme Court of Florida, noted that:
      Closure of court proceedings or records should occur only when necessary (a) to comply with established public policy set forth in the constitution, statutes, rules or case law; (b) to protect trade secrets; (c) to protect a compelling government interest ...; (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 ... privacy right not generally inherent in the specific type of civil proceeding sough to be closed.

        Id. at 118.

      . Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

      . In Keene Sentinel, 136 N.H. 121, 612 A.2d 911 (1992), a newspaper petitioned for access to the sealed divorce files of an incumbent congressional candidate, and the lower courts refuse to unseal the records, ruling that the newspaper failed to present evidence as to why the balance of interests favored the public access over the individual privacy. Id. at 128, 612 A.2d at 915-16. The court noted that:
      there is a presumption that court records are public and the burden of proof rests with the party seeking nondisclosure of court records to determine with specificity that there is some overriding consideration ..., that is sufficiently compelling interest, which outweighs the public right of access to those records.

        Id. at 128, 612 A.2d 911..

      . Tresa Baidas, Sealing Divorce Records for the Sake of ... Corporations, The National Law Journal (Nov. 15, 2005).

      . The judgment in this case was vacated on other grounds. See, Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976).

      .In Reinhardt v. Reinhardt, 97-1889 (La.App. 1 Cir. 9/25/98), 720 So.2d 78, 79, writ denied, 98-2697 (La.12/18/98), 734 So.2d 635, the court noted that:
      The well-being of its children is of course a subject within the [sjtate’s constitutional power to regulate.... The state regulates parental rights in many areas: for example, child custody, child visitation, child labor, schooling, and health. Additionally, when analyzing the effect of a regulation on the rights of parents to privacy in family decisions and child rearing, the interest and rights of the children and relatives should also be considered and balanced.
      (Citation omitted)


text:
    In re Judge Michael R. WALKER.
    No. 2007-O-2037.
    Supreme Court of Louisiana.
    Oct. 18, 2007.
   ORDER

Considering the Recommendation for Immediate Disqualification of Judge Michael R. Walker filed by the Judiciary Commission of Louisiana, and the response by Judge Walker waiving service and consenting to interim disqualification,

IT IS ORDERED, ADJUDGED AND DECREED that Judge Michael R. Walker, First Judicial District Court, Parish of Caddo, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately.

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re Judge Vernon CLAVILLE.
    No. 2007-O-2038.
    Supreme Court of Louisiana.
    Oct. 18, 2007.
   ORDER

Considering the Recommendation for Immediate Disqualification of Judge Vernon Claville filed by the Judiciary Commission of Louisiana, and the response by Judge Claville waiving service and consenting to interim disqualification,

IT IS ORDERED, ADJUDGED AND DECREED that Judge Vernon Claville, Caddo Juvenile Court, Parish of Caddo, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately-

/s/ Pascal F. Calogero, Jr. Justice, Supreme Court of Louisiana


text:
    In re John Ernest BROWN.
    No. 2007-OB-1961.
    Supreme Court of Louisiana.
    Oct. 23, 2007.
   ORDER

Considering the Joint Petition for Conditional Reinstatement from Disability Inactive Status filed by respondent and the Office of Disciplinary Counsel,

IT IS ORDERED that John Ernest Brown, Louisiana Bar Roll number 14103, be and he hereby is immediately reinstated to the practice of law, subject to a probationary period of five years. During the probationary period, respondent shall fully and completely adhere to all terms of the recovery agreement executed by him with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent’s compliance with his recovery agreement and notify this court of any violation, which may be grounds for immediately returning respondent to disability inactive status.

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana