author: RAY, J.

text:
    MORRIS PUBLISHING GROUP, LLC, d/b/a, The Florida Times-Union, and Multimedia Holdings Corporation, and Gannett River States Publishing Corporation, d/b/a, WTLV/WJXX First Coast News, Petitioners, v. STATE of Florida and Michael D. Dunn, Respondents.
    No. 1D14-0630.
    District Court of Appeal of Florida, First District.
    April 25, 2014.

      George D. Gabel, Jr., Timothy J. Conner, Jennifer A. Mansfield, and Paul R. Regensdorf of Holland & Knight LLP, Jacksonville, for Petitioners.
    Pamela Jo Bondi, Attorney General; Samuel B. Steinberg and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Respondent State of Florida; and Cory C. Strolla, West Palm Beach, for Respondent Michael D. Dunn.
   RAY, J.

Before the court is a petition filed by members of the news media for review of orders excluding the press from portions of jury selection proceedings held as part of a high-profile criminal prosecution. The petition alleges that the exclusions infringed upon the media’s right of access to criminal trial proceedings guaranteed by the First and Fourteenth Amendments of the United States Constitution. We agree with Petitioners in part, and we vacate the orders discussed below.

I.

The instant petition arises from the prosecution of Respondent Michael Dunn in Duval County on one count of murder in the first degree, three counts of attempted murder in the first degree, and one count of shooting or throwing a deadly missile. Mr. Dunn fired shots into an SUV containing four black teenagers, fatally shooting one of them, during a dispute over loud music. At trial, Mr. Dunn claimed self-defense, alleging that the teenagers had threatened him. He was found guilty of three counts of the lesser-included offense of attempted second-degree murder and the single count of shooting or throwing a deadly missile. The jury could not reach a verdict on the first-degree murder charge, and a mistrial was declared as to that count. Mr. Dunn’s retrial has currently been scheduled for May 5, 2014.

The prosecution of Mr. Dunn has been highly publicized with his first trial receiving significant media attention. Petitioners contend that the weekend before trial, they learned that the media would not be permitted to attend the voir dire examination of the prospective jurors, but would instead be placed in a separate room with an audio feed from the courtroom. Petitioners appeared at the beginning of trial and objected to the media’s physical exclusion from jury selection, arguing that the public and the press have a right to be physically present at all phases of the trial, including jury selection, under the First and Fourteenth Amendments. The media contended that the audio feed was an insufficient substitute for the media’s ability to visually observe the demeanor and nonverbal reactions and interactions of the judge, the attorneys, and the prospective jurors. Petitioners suggested that the media could arrange to have a limited number of media representatives present in the courtroom if seating capacity was a concern.

The trial judge responded that he thought this arrangement had been previously agreed to by the media months ago through its representatives on the court’s “media committee.” The trial court concluded that it would be logistically impossible to accommodate all of the prospective jurors, media outlets, and families of the victims in one courtroom, and that the proceedings would not be “closed” to the media because of the audio-feed option. Counsel for Mr. Dunn did not take a position on this issue, but the State consented to the court’s oral ruling.

Petitioners filed the affidavits of two reporters in support of their petition before this court. The reporters attest that they were excluded from the courtroom during jury selection on February 3, 2014, for the stated reason that there was insufficient room in the courtroom for any members of the press. However, both affiants are of the opinion that there was ample room for the media to be physically present in the courtroom. The media representatives were directed to an “overflow courtroom” where an audio feed of the proceedings was provided. Because the trial judge was the only person sitting in front of a microphone, the media were unable to hear any of the attorneys’ questions to the prospective jurors, or the prospective jurors’ responses to those questions.

The affidavit filed by Larry Hannan, a reporter for The Florida Times-Union, asserts that at one point during the February 3 proceedings, the audio feed was turned off while the prospective jurors went to lunch; however, by the time the audio feed was turned back on, approximately 24 prospective jurors had been dismissed. It is therefore clear, asserts Mr. Hannan, that the trial judge and the attorneys held a portion of the February 3 proceedings while the media were barred from the courtroom and the audio feed was turned off.

Affiant Anne Schindler, a reporter for First Coast News, was a member of the media committee referenced in the trial court’s ruling. According to her affidavit, “[t]he idea that the media would be excluded from jury selection was never presented to the Media Committee as a matter to be discussed.” Further, “[t]he Media Committee never agreed that members of the media would be excluded from the courtroom. To the contrary, the Media Committee took every step possible to ensure that this trial was open to the public.”

On the second day of jury selection, Petitioners were given an opportunity to be heard regarding the problems experienced with the audio feed the day before. Petitioners reiterated their position that the media are entitled to be physically present during jury selection. Ultimately, the trial court agreed to allow two reporters to be physically present for the remainder of jury selection that day, and allowed four reporters to be present the following day. Court personnel corrected the audio problems in the overflow room and installed a video monitor.

However, during a recess in the proceedings the next day, at which time the courtroom was closed to the public, the court conducted the challenge portion of jury selection without the venire present. Following some discussion regarding the striking of jurors, the State asked the judge whether the audio/video feed was off. Court personnel stated, “Audio video is off right now. I am not turning anything on until I get direction from you.” The discussion continued as follows:

[STATE ATTORNEY]: I would submit respectfully that this is a chambers-type proceeding that could easily be held in chambers but that sometimes for convenience sake a Court can close off the courtroom as chambers and that’s what I believe. I mean we could all go into the jury room.
THE COURT: You are right. We could so my thought was we will leave everything off. We have a court reporter taking down everything that’s being said and it’s just us basically in chambers.
[STATE ATTORNEY]: Thank you, Your Honor, because we do have a lot of legal argument or possibly [sic].

Counsel for Mr. Dunn made no objection. Jury selection ensued and was completed following this exchange, with the media absent from the courtroom and the audio and video feed turned off entirely.

Several days later, on February 8, the trial court entered a written order holding that Petitioners had no right to be physically present at the jury selection proceedings and that the audio feed was sufficient to preserve the press’s right of access to the criminal trial. The trial court found that the defendant’s right to a fair trial is paramount, and in any event, the restriction of the media’s access to an audio feed does not constitute closure. The order noted that the victims’ families had agreed to listen in via audio feed rather than be physically present. To allow the media to be physically present, but not the families of the victims, would be unfair because the victims’ families have a constitutional right to be present as well. The court found that Petitioners, as members of the court-appointed “media committee,” had agreed to the audio feed alternative months prior to trial, but waited until the morning of jury selection to object. Furthermore, the order asserted that although the courtroom capacity is 227, the gallery holds only 100 people comfortably.

Petitioners filed an emergency petition with this court to review the orders of the trial court excluding the media from the courtroom proceedings.

II.

Petitioners submit that the actions of the trial court outlined above amount to a violation of their First Amendment right of access to criminal trial proceedings. The State counters with four main premises: (1) this court lacks jurisdiction to entertain the petition because Petitioners have failed to show the existence of any written or oral order; (2) the petition is moot because the trial court addressed Petitioners’ complaints during the course of the proceedings; (8) Petitioners’ due process rights were not violated because they received notice below and an opportunity to be heard; and (4) no actual closure of the proceedings occurred; rather, the trial court placed permissible restrictions to public access and properly conducted “bench conferences” outside the hearing of the media and the public. We consider each of these points in turn.

A.

An order excluding the press or public from a judicial proceeding is reviewable pursuant to Rule 9.100(d) of the Florida Rules of Appellate Procedure. While Petitioners have identified multiple instances in which their access to the judicial proceedings below was allegedly restricted, only two of these instances resulted in reviewable orders that merit a full discussion. The first such order is the trial court’s oral ruling on February 3, which was later memorialized in a written ruling dated February 8, denying the media’s request to be physically present for jury selection. The second order is the trial court’s oral ruling on February 5 to keep the audio feed off during the juror challenge portion of jury selection while the courtroom was closed.

B.

Despite the existence of reviewable orders, the State contends that Petitioners’ claims are moot because the trial court took remedial measures to correct the access issues. As the State properly acknowledges, however, there is a narrow, but well-established, exception to the mootness doctrine for controversies that are “capable of repetition, yet evading review.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (citing Southern Pacific Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911)). That exception applies when “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975). Both elements are satisfied in this case. The closure orders at issue were in effect for a short period of time and evaded review until now, a result which is not uncommon and not surprising for this type of First Amendment challenge. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (“[B]ecause criminal trials are typically of short duration, [a closure order] will likely evade review, or at least considered plenary review in this Court.” (internal citations omitted)). We further conclude that the underlying disputes concerning the deprivation of the public right to access criminal trial proceedings present important questions capable of repetition. Although Mr. Dunn’s first trial has concluded, he received a mistrial on the most significant charge— premeditated murder — and is currently awaiting a retrial on that count. We have no doubt that the media will seek access to Mr. Dunn’s second trial and to other high-profile criminal trials in the future. Accordingly, we have jurisdiction.

III.

The United States Supreme Court’s landmark decision in Richmond, Newspapers recognized that the First Amendment guarantees both the public and the press a right to attend criminal trial proceedings. Richmond Newspapers, 448 U.S. at 580, 100 S.Ct. 2814. At issue in that case was a Virginia trial court order excluding the public (and by extension, the press) from access to a murder trial upon the unopposed motion of the defendant. Recognizing it as a case of first impression, the Court engaged in an exhaustive historical analysis of the presumptively open nature of criminal trials in American jurisprudence, ultimately finding that “the historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial.” Id. at 569, 100 S.Ct. 2814. The Court concluded that “[f]rom this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past ... a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” Id. at 573, 100 S.Ct. 2814.

In addition to its historical overview, the Court also focused heavily on the public policy justifications for open criminal trials:

[Especially in the administration of criminal justice, the means used to achieve justice must have the support derived from public acceptance of both the process and its results.
When a shocking crime occurs, a community reaction of outrage and public protest often follows.... Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion....
Civilized societies withdraw both from the victim and the vigilante the enforcement of criminal laws, but they cannot erase from people’s consciousness the fundamental, natural yearning to see justice done — or even the urge for retribution. The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if jüstice is “done in a corner [or] in any covert manner.”

Id. at 571, 100 S.Ct. 2814 (citations omitted). Especially in the present era of ubiquitous electronic media, “[i]nstead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public.” Id. at 572-73, 100 5.Ct. 2814.

Having established the guaranteed right of the public and the press to attend criminal trials, the Court in Richmond Newspapers addressed the closure order before it and held that “[a]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.” Id. at 581, 100 S.Ct. 2814. Because the trial court had not made any findings supporting closure and did not consider any options short of closure that would “satisfy the constitutional demands of fairness,” the public’s exclusion from the trial was improper. Id.

Richmond Newspapers paved the way for the Court’s later expansion of the First Amendment presumption of openness to include voir dire in criminal trials. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (“Press-Enterprise I ”). There, a California trial court had excluded the press from the individual voir dire examination of prospective jurors in a capital murder prosecution, and also denied the press access to the transcript of the proceedings. Id. 504, 104 S.Ct. 819. As it had done previously, the Court incorporated history and policy in its analysis to support a presumption of openness. The Court recounted the historical roots of public jury selection to England and colonial America, noting that “since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown.” Id. at 505, 104 S.Ct. 819. The Court reasoned that the value of public access is equally important today because it “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” Id. at 508, 104 S.Ct. 819. It also provides a “community therapeutic value” in “knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected.” Id. at 508-09, 104 S.Ct. 819.

Emphasizing that closed proceedings should be “rare,” the Court acknowledged that the constitutional right to public access is not absolute. Press-Enterprise I, 464 U.S. at 509, 104 S.Ct. 819. When competing rights and interests are at play, the Court instructed that:

[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. at 510, 104 S.Ct. 819 (emphasis added). The Court concluded that the reasons asserted for the California closure order— the right of the defendant to a fair trial and juror privacy — were unsupported by findings that an open proceeding would threaten those interests. The Court further stated that even with adequate findings, the trial court could not properly close voir dire without considering whether alternatives to closure were available. Id. at 511, 104 S.Ct. 819.

The Court has since reaffirmed the constitutional right to a public trial, and more particularly, to the jury selection phase of a criminal trial, in the context of a defendant’s Sixth Amendment right. Presley v. Georgia, 558 U.S. 209, 180 S.Ct. 721, 175 L.Ed.2d 675 (2010). In Presley, the Court summarily held that the defendant’s Sixth Amendment right to a public trial was violated when the trial judge excluded the “lone courtroom observer” from voir dire, over defendant’s objection, purportedly due to space limitations in the courtroom. The Court reiterated the standards, originally announced in Press-Enterprise I, which courts must apply before closing any portion of a criminal trial. Id. at 214, 130 S.Ct. 721. In the order under review, the Court determined that the trial judge failed to consider alternatives to closure, even though none had been offered by the parties. Because that error, standing alone, was sufficient to warrant relief, the Court declined to address whether the trial court had established an overriding interest in closing voir dire. In so holding, the Court emphasized that “[tjrial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” Id. at 215, 130 S.Ct. 721.

Before turning to our analysis, a decision of the Florida Supreme Court is also relevant to review. In Miami Herald Publishing Company v. Lewis, the Court recognized a common-law presumption of public access to pretrial hearings in criminal cases. 426 So.2d 1 (Fla.1982). Initially, the Court rejected the argument of the media that the First Amendment guarantees the right of public access to pretrial proceedings, “as distinguished from the right to attend a criminal trial.” Id. at 6. But given the Court’s support for open government and its recognition that “[w]hat transpires in the courtroom is public property,” the Court instructed trial courts to operate under the assumption that the public and the press should ordinarily have unrestricted access to judicial proceedings. Id. at 7; see generally State ex. rel. Miami Herald Publ’g Co. v. McIntosh, 340 So.2d 904 (Fla.1977). Recognizing that an inherent conflict may arise between the fundamental rights of an accused to a fair trial, and of public access to the judicial process, the Court delineated a three-part test for assessing whether closure of a judicial proceeding is appropriate. Lewis, 426 So.2d at 6-7. Under the “Lewis test,” those seeking closure have the burden to establish that:

1. Closure is necessary to prevent a serious and imminent threat to the administration of justice; 2. No alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and 3. Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.

Id. at 6. If the trial court concludes that there is a “strict and inescapable necessity for closure,” it must make findings of fact based on record evidence and conclusions of law for the benefit of the reviewing court. Id. at 8-9.

With the foregoing law as our framework, we address the orders under review.

A.

The trial court’s February 8 written order, which memorialized its oral ruling on February 3, excluded the media from physical access to the courtroom during the voir dire examination of prospective jurors. While the media were given access to an overflow room with an audio feed to the courtroom, the media’s ability to hear the proceeding was severely compromised that day. At some point during the second day of jury selection, the trial court reconsidered its earlier ruling and allowed a limited number of media to attend the proceedings in person. In sum, the trial court’s order restricted the media’s access to Mr. Dunn’s criminal trial for the first of three days of jury selection, and for a portion of the proceedings the second day.

Our first decision point is to determine whether the qualified right of public access to criminal trials, guaranteed by the First and Fourteenth Amendments, attaches to the jury selection proceedings at issue. We conclude that Press-Enterprise I is directly controlling and answers that question affirmatively. See Press-Enterprise I, 464 U.S. at 505, 104 S.Ct. 819 (holding that the First Amendment right to a public trial in criminal cases includes the voir dire process).

We must next decide whether there was closure of constitutional magnitude so as to require the Press-Enterprise I balancing test. The trial court states in its order that there has been “no closure nor any prohibition of media access during jury selection; rather the audio feed serves as the media and public’s access to the proceedings.” We disagree. By limiting their observation of the proceedings to audio, Petitioners were deprived of the ability to see the judge, prospective jurors, and attorneys to evaluate their demeanor, body language, and other non-verbal expressions. In analogous situations, courts have held that the availability of a transcript of a proceeding is not a sufficient substitute for a public presence at the proceeding. See, e.g., ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir.2004) (“[0]ne cannot transcribe an anguished look or a nervous tic. The ability to see and to hear a proceeding as it unfolds is a vital component of the First Amendment right of access — not, as the government describes, an incremental benefit.”); Soc’y of Prof'l Journalists v. Sec’y of Labor, 616 F.Supp. 569, 578 (D.Utah 1985) (“[T]he full flavor of [a] hearing cannot be sensed from the sterile sheets of a transcript. Emotions, gestures, facial expressions, and pregnant pauses do not appear on the reported transcript. Much of what makes good news is lost in the difference between a one-dimensional transcript and an opportunity to see and hear testimony as it unfolds.” (citation omitted)). Even if the audio feed was working properly in the overflow room, the trial court’s decision to exclude the public from physical access to the courtroom during jury selection was a sufficient constitutional infringement to trigger application of the Press-Enterprise I test.

Under Press-Enterprise I, the trial court did not engage in the appropriate analysis before barring the media and the public from physical access to the courtroom. Reading the order liberally, it appears that the “overriding interest” advanced by the order is safeguarding the defendant’s Sixth Amendment right to a fair trial. We recognize that the United States Supreme Court has noted that “[n]o right ranks higher than the right of the accused to a fair trial” and in certain limited circumstances, the right of public access must yield accordingly. Press-Enterprise I, 464 U.S. at 508, 104 S.Ct. 819. The trial court bears the heavy burden of preserving order and decorum in the courtroom and safeguarding the defendant’s right to a fair trial; this is a task often made exponentially more difficult in a high-profile case.

But notwithstanding the paramount importance of the accused’s right to a fair trial, the trial court was nevertheless required to articulate specific findings supported by the record that closure was essential to preserving the defendant’s right, and that there were no reasonable alternatives to protect that interest. Press-Enterprise I, 464 U.S. at 513, 104 S.Ct. 819; Press-Enterprise II, 478 U.S. at 15, 106 S.Ct. 2735 (“The First Amendment right of access cannot be overcome by the conclu-sory assertion that publicity might deprive the defendant [of the right to an impartial verdict].”). The reasons given for closure in this case included the suggestion that the courtroom was too small to accommodate all of the prospective jurors, the media outlets, and the families of the victims; that “arrangements were made with the Media Committee months in advance of the trial to hear real-time audio of the jury selection process” and Petitioners waited until the last minute to lodge an objection; and that it would be unfair to allow the media access to the courtroom when the families of the victims had agreed not to be present. These findings are unsupported by record evidence and the order fails to show how these factors would constitute an infringement on the defendant’s Sixth Amendment right to a fair trial.

With respect to the potential waiver issue, there is no support in the record before us that Petitioners consented to being physically excluded from the courtroom or had ample notice regarding the closure prior to the start of trial. To the contrary, the affidavit from reporter Anne Schindler directly refutes these findings. Moreover, Petitioners argued this point to the trial court prior to the exclusion order being entered. To the extent that an issue of fact was created, the trial court should have held an evidentiary hearing to resolve the conflict. There exists a presumption in favor of openness, and the burden is on the party seeking closure to justify that result.

On the issue of courtroom capacity, the trial court did not articulate how an open proceeding would threaten the defendant’s right to a fair trial. Affidavits in the record indicate that there was adequate seating available for media representatives during jury selection. But perhaps most significantly, the trial court did not consider any alternative solutions to account for the public’s right to be physically present for jury selection. That error alone warrants vacating the closure order. Presley, 558 U.S. at 216, 130 S.Ct. 721. All courtrooms have limited capacity, and precedent permits courts to place reasonable restrictions on general access. In this case, the media suggested allocating a limited number of seats for media representatives, who would pool their resources and alternate attendance. Presley offers other possible solutions including “reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members.” Id. at 215, 130 S.Ct. 721. The orders barring the media from physically attending jury selection fail to overcome the presumption of openness, and this failure constitutes reversible error.

B.

The February 5, 2014, oral order of the trial court similarly fails to comply with the constitutionally mandated balancing tests described above. The audio feed was left off while the courtroom was empty of press, public, and prospective jurors, and the striking of jurors was conducted until the process of jury selection was completed. Far from conducting a hearing on this closure, making findings of fact to support the closure, or considering alternatives to closure, the trial court simply declared the juror challenge proceeding to be an “in chambers” hearing, with no notice to the media or opportunity for the media to object.

The State does not argue before this court, as did the State Attorney below, that the proceeding constituted an “in chambers” hearing; instead, the State argues that the proceeding was effectively a “bench conference” to which the media have no right of access. We fully agree with the premise that the public (and by extension, the press) generally have no right of access to sidebars or bench conferences, or to certain conferences conducted in judicial chambers. As explained by Justice Brennan in his concurrence to the plurality opinion in Richmond Newspapers:

The presumption of public trials is, of course, not at all incompatible with reasonable restrictions imposed upon courtroom behavior in the interests of decorum. Thus, when engaging in interchanges at the bench, the trial judge is not required to allow public or press intrusion upon the huddle. Nor does this opinion intimate that judges are restricted in their ability to conduct conferences in chambers, inasmuch as such conferences are distinct from trial proceedings.

Richmond Newspapers, 448 U.S. at 598 n. 23, 100 S.Ct. 2814 (emphasis added) (internal citation omitted). Indeed, our resolution of the media access issues in this case does not foreclose the practice of using sidebar conferences in open court, out of the earshot of the jury, to address either administrative issues or sensitive matters that traditionally have been kept from jurors in the interests of judicial administration. See, e.g., 6 Wayne R. LaFave, et. al., Crim. Proc. § 23.1(d), “Closed proceedings: First Amendment right of access” (3d ed. Dec. 2013) (noting that “lower courts consistently have held that they do not violate any right of First Amendment access when presentations [are] made in chambers or in sidebar conferences for appropriate administrative purposes (e.g., to ensure that the jury does not overhear the discussion), even though the press and public is thereby excluded”). We have not been presented with questions about the constitutional limitations of sidebars in an otherwise open courtroom with the media present; nor are we presented with the commonplace practice of allowing juror challenges at sidebar, when convenient to the court and agreed upon by the parties when no media observers are present. Instead, we address only the decision to conduct the juror striking portion of jury selection behind closed doors over the objections of the media.

We need not parse the terms used to describe the proceeding for the purpose of our analysis, for “the First Amendment question cannot be resolved solely on the label we give the event ....” Press-Enterprise II, 478 U.S. at 7, 106 S.Ct. 2735. “[A] proceeding that would be subject to a right of access if held in open court does not lose that character simply because the trial court chooses to hold the proceeding in chambers.” NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178, 86 Cal.Rptr.2d 778, 980 P.2d 337, 363 (1999). A functional analysis is necessary to determine whether the closed proceeding is part of the trial process to which the First Amendment right of access attaches. See, e.g., Palm Beach Newspapers, Inc. v. Harper, 417 So.2d 1100 (Fla. 4th DCA 1982) (holding that chambers conference, the purpose of which was to inform counsel that judge’s secretary had received an anonymous telephone call relating to one of the parties, was not a judicial proceeding at which the press and public were entitled to be present).

Here, the purported “bench conference” was, in fact, a substantive part of the trial. In the context of a defendant’s right to be present for trial, Florida courts have consistently held that the “challenge of jurors is one of the essential stages of a criminal trial where the defendant’s presence is required.” Salcedo v. State, 497 So.2d 1294, 1295 (Fla. 1st DCA 1986) (citing Lane v. State, 459 So.2d 1145, 1146 (Fla. 3d DCA 1984)); see also Luyao v. State, 982 So.2d 1234, 1235 (Fla. 4th DCA 2008) (noting that the “ ‘examination and challenge of potential jurors is one of the essential stages of a criminal trial where a defendant’s presence is mandated’ ”) (emphasis added) (quoting Matthews v. State, 687 So.2d 908, 909 (Fla. 4th DCA 1997)). The juror challenge phase “is not a mere ‘mechanical function’ but may involve the formulation of on-the-spot strategy decisions which may be influenced by the acts of the state at that time.” Salcedo, 497 So.2d at 1295.

In California v. Harris, a California state appeals court found that in holding the peremptory challenge portion of voir dire in chambers, the trial court violated the defendant’s Sixth Amendment right to a public trial. See California v. Harris, 10 Cal.App.4th 672, 12 Cal.Rptr.2d 758 (1992). While relief was granted in the direct appeal predicated upon a Sixth Amendment analysis, that case is nevertheless instructive in this First Amendment case. Quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), for the proposition that “the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public,” the Harris court utilized the balancing test articulated in Press-Enterprise I to conclude that “[t]he peremptory challenge process, precisely because it is an integral part of the voir dire/jury impanelment process, is part of the ‘trial’ to which a criminal defendant’s constitutional right to a public trial extends. Thus, in this case, the trial court’s ‘chamber striking’ method of conducting a portion of the peremptory challenge process was at least a prima facie violation of [the] defendant’s constitutional right to a public trial.” Harris, 12 Cal.Rptr.2d at 764. We agree with the Harris court’s conclusion in this First Amendment context.

Furthermore, even if First Amendment rights were not implicated by this closure, the trial court was constrained by the common-law right of access to criminal proceedings recognized by the Florida Supreme Court in Lewis, supra. Although Lewis dealt specifically with access to a pretrial suppression hearing, its reasoning equally applies to the juror challenge phase of jury selection. In an illustrative juxtaposition, the Court in Palm Beach Newspapers, Inc. v. Burk rejected press access to unfiled depositions in a criminal proceeding by reiterating its rationale for finding a presumption of access in Lewis:

Our commitment to opening the judicial process to [pretrial suppression] hearings was predicated on the fact that suppression hearings were judicial proceedings and we, therefore, provided a method for press participation because the public has “a right to know what occurs in the courts.” Discovery depositions are judicially compelled for the purpose of allowing parties to investigate and prepare their case, but, unlike a suppression hearing, they are not judicial proceedings “for the simple reason that there is no judge present, and no rulings nor adjudications of any sort are made by any judicial authority.”

Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378, 384 (Fla.1987) (emphasis in original) (internal citation omitted). As the juror challenge phase of jury selection is a “judicial proceeding” and an essential part of a criminal trial, we conclude that Lewis provides an additional mandate for a qualified right to public access, requiring both procedural and substantive safeguards prior to closure.

IV.

The “right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated.’ ” Richmond Newspapers, 448 U.S. at 580, 100 S.Ct. 2814 (footnote and citations omitted). “The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily.” Id. at 576-77, 448 U.S. 555. Upon consideration of this precept, and based upon the analysis above, we GRANT the media’s petition for review of orders excluding the press or public and VACATE the orders identified in this opinion.

THOMAS and MAKAR, JJ., concur.

      . The "media committee" referenced throughout this proceeding refers to a committee established pursuant to Fourth Judicial Circuit Administrative Order No.2013-08 relating to "Media and Technological Coverage of Cases of Extraordinary Public Interest.” The media committee consists of representatives from the media and the circuit court to "attend to issues surrounding the regulation of media representatives and to ensure all media representative's [sic] compliance with all Court orders.”

      .Petitioners assert that they did not receive a copy of this order until it was served via email on February 12, 2014.

      . There has been no response to the petition from the State's co-respondent, Mr. Dunn.

      . The State raises other collateral arguments that we mention here for the sake of comprehensiveness, but which do not warrant more exhaustive discussion or analysis. First, the State argues that Petitioners have failed to provide us with an adequate record for review. We find this argument to be without merit as Petitioners have provided this court with, inter alia, the trial court's written ruling and transcripts of discussions held on the relevant closure issues. Second, the State asserts that Petitioners are “third parties” which are improperly interfering with the judicial process in the criminal proceeding and are without authority to seek to overturn a criminal conviction. While we agree that Petitioners are not per se parties to the criminal proceeding, the media were granted interve-nor status below for the purpose of determining the parameters of their First Amendment right of access to the trial proceedings, and they have clear standing before this court to seek review of orders excluding them from the proceedings. Fla. R. App. P. 9.100(d). Moreover, the media are seeking to vindicate their First Amendment right to access, not Mr. Dunn’s Sixth Amendment right to a public trial. Third, the State contends that the media were afforded procedural due process relative to the access issues in the form of notice of the restrictions and an opportunity to be heard on the restrictions. Petitioners' procedural due process rights are incorporated in our discussion infra on the procedural requirements that courts must satisfy before restricting public access to criminal trial proceedings.

      . The First Amendment, as applied to the States by the Fourteenth Amendment, provides that:
      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
      While the public’s right of access to criminal trials is not explicit in the text of the First Amendment, the plurality opinion in Richmond Newspapers concluded that this unartic-ulated right is implicit in the enumerated guarantees of the First Amendment.

      . In a successor case to Press-Enterprise I, the United States Supreme Court expanded the scope of the First Amendment right of public access even further, this time to a proceeding beyond the criminal "trial” itself — the preliminary hearing. Press-Enterprise Co. v. Superi- or Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) {Press-Enterprise II).

      . The Press-Enterprise I standards were later adopted by the United States Supreme Court in Waller v. Georgia, which extended the Sixth Amendment right to a public trial to include pretrial suppression hearings. 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). This four-part test, often referred to as the "Waller test,” provides that: "[(1)] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [ (2) ] the closure must be no broader than necessary to protect that interest, [ (3) ] the trial court must consider reasonable alternatives to closing the proceeding, and [ (4) ] it must make findings adequate to support the closure.” Id. at 48, 104 S.Ct. 2210.

      . The accused’s right to a fair trial and the public right of access are "not necessarily inconsistent” interests. Press-Enterprise II, 478 U.S. at 7, 106 S.Ct. 2735. "Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.” Id.

      . In its response to the petition, the State expressly declined to take a position regarding the propriety of the trial court’s decision barring the media’s physical presence in the courtroom during jury selection, although it conceded at oral argument that this ruling would have been improper had the media not waived their right to be physically present by agreeing to attend jury selection via audio feed. After oral argument, the State filed an affidavit dated March 12, 2014, of the trial court administrator, who represented that a "decision was made” that the victims’ families, additional state attorney staff, and the media “would not be present” in the courtroom "during jury selection” and that audio and video were to be made available in a nearby courtroom. The trial court administrator further stated that he contacted the chair of the media committee and reporter Larry Hannan on March 12, 2014, and that both acknowledged that the media committee chair had passed along information that an audio feed was to be available for voir dire. The State, however, had concurrently received an email from the media committee chair, who said that the media committee had not agreed to any protocols related to jury selection, a topic that first came to his attention sometime during the middle to latter part of the week immediately prior to voir dire beginning. He disavowed that the media had agreed to the audio feed alternative, specifically noting that "[sjome members of the media had objected” to exclusion from the live proceedings. Based on these filings and the record before us generally, it is evident that no judicial hearing was held by the trial court on the media’s exclusion from voir dire, only that a "decision was made” by someone at some point to do so. The trial judge, apparently operating under misinformation regarding what had occurred, concluded that the media had been privy to and agreed with the “decision” to exclude them, resulting in the impression that the media had "sandbagged” the matter by waiting to object until the start of voir dire. This then formed the basis for the State's argument that the media waived their right to be physically present for jury selection.

      .This does not suggest that trial courts have a duty to find a seat for every person who wishes to attend judicial proceedings; however, it cannot categorically exclude the public or the press unless the presumption of openness is successfully rebutted. "Obviously, the public trial guarantee is not violated if an individual member of the public cannot gain admittance to a courtroom because there are no available seats. The guarantee will already have been met, for the 'public' will be present in the form of those persons who did gain admission.” Estes v. Texas, 381 U.S. 532, 588-89, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, X, concurring).

      . A bench conference, or "sidebar conference,” refers to a discussion at the bench "among the judge and counsel, usu. over an evidentiary objection, outside the jury's hearing.” Black’s Law Dictionary (9th ed. 2009). In the proceedings at issue, the venire was not present in the courtroom.

      . The Florida Rules of Judicial Administration governing "Technological Coverage of Judicial Proceedings” prohibit "audio pickup or broadcast” of bench conferences in order to protect "the attorney-client privilege and the effective right to counsel.” Fla. R. Jud. Admin. 2.450(g).

      . In the State of Florida, the process of juror challenges is regulated by the Florida Rules of Criminal Procedure. Significantly, the relevant rules may be found under the subsection titled "IX. THE TRIAL,” which includes rules governing voir dire (Rule 3.300), juror oaths (Rule 3.360), and numerous rules relating to juror striking, including Rule 3.310 ("Time for Challenge”), Rule 3.315 ("Exercise of Challenges”), Rule 3.320 ("Manner of Challenge”), Rule 3.330 ("Determination of Challenge for Cause”), Rule 3.340 ("Effect of Sustaining Challenge”), and Rule 3.350 ("Peremptory Challenges”). “On the motion of any party, all challenges shall be addressed to the court outside the hearing of the jury panel in a manner selected by the court so that the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of the court’s ruling on the challenge, if for cause.” Fla. R. Crim. P. 3.315. Rule 3.180 mandates a defendant’s presence "at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury.” Fla. R. Crim. P. 3.180(a)(4) (emphasis added).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alice Lashonda SANFORD, Appellant, v. Erick Lashaun DAVIS, Appellee.
    No. 1D13-3354.
    District Court of Appeal of Florida, First District.
    April 25, 2014.
    Alice Lashonda Sanford, pro se, Appellant.
    The Gregory Law Firm, Jacksonville, for Appellee.
   PER CURIAM.

Alice L. Sanford appeals the final judgment of dissolution of marriage and raises numerous issues that were either not preserved for appellate review or lacked merit; thus we affirm those without comment. Because the trial court modified an existing child support order without a request for modification and appropriate factual findings, however, we reverse and remand.

Ms. Sanford argues that the trial court erred by modifying an existing child support order. An administrative support order for the party’s minor child was entered on February 23, 2011. That order commenced on March 1, 2011 and required her former husband, Mr. Erick Davis, to pay (a) $484 per month until their “child marries, dies, becomes self-supporting, or attains the age of majority, or further order of this Court” and (b) $6 per month plus interest and applicable service charges “until the retroactive child support or arrearage [of $1,500] and applicable interest are paid in full.” The order also required Mr. Davis to pay $383 in costs and fees within one year. The final judgment at issue ordered Mr. Davis to pay $350 per month, together with applicable service fees. The order in the final judgment appears to supersede the March 1 order. While the circuit court is permitted to modify child support, see § 409.2563(10)(c), Fla. Stat.; see also Matthews v. Matthews, 677 So.2d 323, 325 (Fla. 1st DCA 1996) (explaining that the circuit court has the authority to modify child support so long as the modification is requested and supported by evidence justifying modification), there is no record evidence that either party requested a modification, and neither the magistrate nor the trial court made any factual findings to support the reduction.

Given this error, we AFFIRM in part, REVERSE in part, and REMAND to the trial court for further proceedings consistent with this opinion.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


text:
    Kathryn TAYLOR, Appellant, v. AIR CANADA and Liberty Insurance Company, Appellees.
    No. 1D13-4765.
    District Court of Appeal of Florida, First District.
    April 25, 2014.

      L. Gray Sanders and Kristen H. Emerson of Barbas, Nunez, Sanders, Butler & Hovsepian, Tampa, for Appellant.
    David A. McCranie of the Law Office of Amy L. Warpinski, Jacksonville, for Appel-lees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) abused her discretion in denying her a $2,000 advance of compensation as permitted by section 440.20(12)(c)2., Florida Statutes (2010). We agree and reverse and remand for further proceedings.

Claimant, the compensability of whose claim has been controverted by the Employer/Carrier, requested the advance of compensation for the stated reason of taking the deposition of Claimant’s personal physician who could testify as to Claimant’s condition and the treatment she received immediately after she became ill after eating a lunch provided by her Employer during a training session. The JCC found Claimant had sustained a substantial reduction in wages as a result of her alleged accident and injury and that Claimant had not returned to work since April 15, 2011. On that basis, the JCC concluded that Claimant met the preliminary test of entitlement to an advance payment of compensation under section 440.20(12)(c)2.

The JCC denied the request, however, based on the nature of the money’s intended use — to pay for a cost of litigation. The JCC reasoned that monies for costs can be awarded only after a prevailing party is determined. By concluding that section 440.34(3) was implicated in determining Claimant’s entitlement to the advance payment of compensation, the JCC brought to the analysis a provision that has no meaningful relationship to the question at hand — which is whether the request for the advance of compensation has some nexus to the workplace injury. In focusing on the potential use for the funds in denying the advance, the JCC misapprehended this Court’s analysis in ESIS/ACE American Insurance Co. v. Kuhn, 104 So.3d 1111 (Fla. 1st DCA 2012).

In Kuhn, a two-part test was established for determining entitlement to advances up to $2,000. Id. at 1113. A claimant must meet one of the three statutory qualifiers set forth in subsection (c), and the “JCC must determine that the claimant (a) is a proper claimant and (b) has provided adequate justification for her request.” Id. In explaining what goes into the determination of whether the claimant “has provided adequate justification” for the advance, the Kuhn court instructed that the need for the advance must be in furtherance of chapter 440’s purpose, that is, “to address medical and related financial needs arising from workplace injuries.” Id. at 1114. In other words, the need for the advance of compensation must be “tethered to justifiable medical and other needs arising from and related to workers’ compensation claims.” Id. at 1115. Taking the deposition of a witness who may advance proof of the compensability of a claim is such a need.

Accordingly, the JCC’s denial of the requested $2,000 advance of compensation is REVERSED, and this matter is REMANDED for entry of an order consistent with this opinion.

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


text:
    PANAMA CITY-BAY COUNTY AIRPORT AND INDUSTRIAL DISTRICT, Appellant, v. KELLOGG BROWN & ROOT SERVICES, INC., Appellee.
    No. 1D13-1401.
    District Court of Appeal of Florida, First District.
    April 25, 2014.
    W. Robert Vezina, III, Bradley S. Co-penhaver, and Megan S. Reynolds of Vezi-na, Lawrence, & Piscitelli, Tallahassee for Appellant.
    David L. Mcgee of Beggs & Lane, and Louis K. Rosenbloum, Pensacola for Ap-pellee.
   PER CURIAM.

This appeal arises from the final judgment awarding attorney’s fees, costs, and expenses to Appellee/Cross-Appellant Kellogg Brown & Root Services, Inc. (“KBR”) in litigation that was separately appealed to this court. See Panama City-Bay County Airport and Industrial Dist. v. Kellogg Brown & Root Servs., Inc., 1D12-4874.

Because the appellant, Panama City-Bay County Airport and Industrial District (“Airport”), has prevailed in the main appeal, the trial court’s award of prevailing party attorneys’ fees, costs, and expenses in Appellee KBR’s favor must also be reversed. See Jackson v. The Palms of Perdido, LLC, 114 So.3d 1135 (Fla. 1st DCA 2013); Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999) (“[A]n award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed.”). This decision is without prejudice to KBR’s ability in the future to seek fees, costs, and expenses as the prevailing party in this litigation. See Prosperi v.Code, Inc., 626 So.2d 1360, 1363 (Fla.1993) (recognizing the trial court’s discretion “to consider the equities and determine which party has in fact prevailed on the significant issues”).

REVERSED and REMANDED

ROBERTS, WETHERELL AND OSTERHAUS, JJ., concur.

      . The parties' contract broadly allows for the prevailing party to recover on "any and all claims actions, damages, losses and costs” and "all costs, expenses, and attorney's fees,” without specifying limits, such as those provided under the Statewide Uniform Guidelines of Taxation of Costs in Civil Cases.


text:
    Darlene D. SHARPE, Petitioner, v. David L. STANLEY, Respondent.
    No. 1D14-1190.
    District Court of Appeal of Florida, First District.
    May 1, 2014.

      Darlene D. Sharpe, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner seeks a belated appeal, asserting that she was not provided a copy of the trial court’s final order of dissolution of marriage. As we held in Green v. Department of Corrections, 122 So.3d 932 (Fla. 1st DCA 2013), this court has no authority to grant a belated appeal in a civil proceeding. In a civil case, where a party is “not furnished a copy of the order and thus did not have timely notice of its entry, [that circumstance] does not extend the jurisdictional time limit for appeal. Relief may be sought in the trial court by motion under Fla. R. C[iv]. P. 1.540(b) to set aside the order where no notice of its entry was given the parties, coupled with a request that a new order be entered so that the right of appeal is preserved.” Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

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


author: PER CURIAM. WEIMER, J.,

text:
    Julie GASPARD v. CITY OF ABBEVILLE.
    No. 2013-C-2817.
    Supreme Court of Louisiana.
    March 14, 2014.
    Rehearing Denied April 25, 2014.
   PER CURIAM.

| ,This case arises out of the termination of plaintiff Julie Gaspard from her position as a police officer with the Abbeville Police Department. Upon investigation of an incident that occurred during a classroom taser demonstration, the City of Abbeville Police Department’s Internal Affairs Board (hereinafter “LAB”) determined that Ms. Gaspard did not follow departmental policies while using the taser, resulting in the injury of a child. The City Council unanimously voted to terminate her employment and she appealed, alleging violations of La. R.S. 40:2351(B) and (C) pertaining to officer’s rights.

Ms. Gaspard asserts that a statement made by Sergeant Hebert, the Abbeville Police Department taser training officer, was not provided to her upon request, violating her rights as a police officer and rendering her termination an absolute 12nullity. The Civil Service Board (hereinafter “CSB”) upheld the termination. Ms. Gaspard thereafter appealed to the Fifteenth Judicial District Court, which affirmed the CSB decision finding as a fact that the statement was recorded, however, plaintiff was not entitled to a copy of it.

The Court of Appeal reversed, finding La. R.S. 40:2531(B)(3) does not limit the necessity of recording an interview to the police employee or officer under investigation, but applies to all interrogations of any police employee or law enforcement officer in connection with an investigation. The Court of Appeal determined there was no factual support for the finding that Sgt. Hebert’s interview was actually recorded. The interviewing officers testified that it is the practice of the IAB to record all such interviews; however, no recording could be located. The Court of Appeal therefore found that without proof of the recording, it did not exist, resulting in a violation of the minimum rights of a police employee or law enforcement officer pursuant to La. R.S. 40:2531. The City of Abbeville therefore filed the instant writ application, arguing the Court of Appeal erred in reversing the ruling of the Fifteenth Judicial District Court. We grant the City of Abbeville’s writ application and reverse the ruling of the Court of Appeal.

We find the fact that the recording could not be produced does not effectively prove the statement was not recorded. Moreover, the Court of Appeal’s interpretation of La. R.S. 40:2531(B)(3) essentially entitles an officer to a copy of all statements taken during an investigation. We disagree and find that, according to the plain language of the statute, Ms. Gaspard is only entitled to request a copy of her own statement and, as this is a personal right, the question of whether or not Sergeant Hebert’s statement was actually recorded is of no consequence. The statute clearly states that “[t]he police employee or law enforcement officer shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements upon his written request” (emphasis added). We find |snothing in this language to suggest that Gaspard is entitled to a copy of all statements made during an investigation. The rules of statutory construction require the law to be applied as written if the law is clear and unambiguous and its application does not lead to absurd consequences. La. C.C. art. 9. Under the circumstances, we believe the law is clear and Gaspard’s rights were not violated.

DECREE

For the reasons discussed above, we find the Court of Appeal erred in reversing the District Court’s ruling. Accordingly, we reverse and reinstate the ruling of the Fifteenth Judicial District Court.

VICTORY, J., would deny.

WEIMER, J., dissents in part and would grant and docket.

WEIMER, J.,

dissents and would grant docket.

I,This case presents not only a question of law — whether the requirement of La. R.S. 40:2531(B)(3) that “[a]ll interrogations of any police employee or law enforcement officer in connection with the investigation shall be recorded in full,” is limited or qualified by the next sentence, stating that “[t]he police employee or law enforcement officer shall not be prohibited from obtaining a copy of the recording or transcript of his statements upon his written request” such that only a failure to record the interrogation of the police employee or law enforcement officer requesting a copy of his or her statement constitutes a violation of the statute — but also a question of fact — whether the interrogation of Sergeant Hebert was ever recorded. Because I believe that the court of appeal correctly interpreted the two sentences of La. R.S. 40:2531(B)(3) as stand alone provisions based on the clear and unambiguous language of the statute, correctly resolving the legal issue, and that the factual issue requires an examination of the record, of which this court does not have the benefit, I would grant and docket this matter for briefing, argument, and an opinion based on an examination of the full record, rather than resolve this case by per curiam opinion.

      . La.R.S. 40:2531(B)(3) provides:
      Whenever a police employee or law enforcement officer is under investigation, the following minimum standards shall apply:

      (3) All interrogations of any police employee or law enforcement officer in connection with the investigation shall be recorded in full. The police employee or law enforcement officer shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements upon his written request.

      La. R.S. 40:2531(C) provides: There shall be no discipline, demotion, dismissal, or adverse action of any sort taken against a police employee or law enforcement officer unless the investigation is conducted in accordance with the minimum standards provided for in this Section. Any discipline, demotion, dismissal, or adverse action of any sort whatsoever taken against a police employee or law enforcement officer without complete compliance with the foregoing minimum standards is an absolute nullity.


text:
    STATE of Louisiana v. Lynn E. FORET, M.D.
    No. 2014-CA-0257.
    Supreme Court of Louisiana.
    March 14, 2014.
   PER CURIAM.

|,The State of Louisiana invokes the appellate jurisdiction of this court pursuant to La. Const, art. V, § 5(D), on the ground the district court declared certain statutory provisions unconstitutional.

Pretermitting the merits, we find the appeal is not properly before this court. Article V, § 5(D) vests appellate jurisdiction in this court in cases in which “a law or ordinance has been declared unconstitutional .... ” A review of the district court’s judgment indicates nothing in the judgment declares a law or ordinance unconstitutional for purposes of La. Const, art. V, § 5(D). Rather, the district court’s judgment merely sustains defendant’s dec-linatory exception.

We acknowledge the district court’s oral reasons indicate its decision to sustain the exception may have been based on constitutional grounds. Specifically, the court’s oral reasons reference defendant’s brief, which argued retroactive application of the statutes in question violated the due process clause.

Nonetheless, it is well-settled law that the district court’s reasons for judgment do not form part of the judgment. See La.Code Civ. P. art. 1918; see also Perez v. Evenstar, Inc., 12-1003 (La.6/22/12), 91 So.3d 288; Carmena v. East Baton Rouge Parish Sheriff’s Office, 06-2680 (La.2/2/07), 947 So.2d 715; Haynes v. United Parcel Service, 05-2378 (La.7/6/06), 933 So.2d 765; Spiers v. Roye, 04-2189 (La.App. 1st Cir.2/10/06), 927 So.2d 1158; Davis v. Hoffman, 00-2326 (La.App. 4th Cir.10/24/01), 800 So.2d 1028; LaRocca v. Bailey, 01-0618 (La.App. 3rd Cir 1/7/01),2 799 So.2d 1263; City of Kaplan v. Ma- yard, 616 So.2d 826 (La.App. 3rd Cir.1993); Marino v. Marino, 576 So.2d 1196 (La.App. 5th Cir.1991).

Because there is no declaration of unconstitutionality in the district court’s judgment, there is no basis for the exercise of this court’s appellate jurisdiction. Accordingly, pursuant to La. Code Civ. P. art. 2162, the appeal is transferred to the court of appeal for further proceedings.

      . Defendant filed a "Motion to Dismiss Appeal, or in the Alternative, to Transfer to a Court of Proper Jurisdiction.” Because we determined, ex proprio motu, that we lack appellate jurisdiction, defendant’s motion is denied as moot. See Anisman v. Stanolind Oil & Gas Co., 232 La. 514, 94 So.2d 650, 652 (1957) ("[t]his Court, ex proprio motu, must determine whether it has appellate jurisdiction”).


text:
    In re Robert T. GARRITY, Jr.
    No. 2014-B-0468.
    Supreme Court of Louisiana.
    April 4, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

hThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent commingled earned fees with client funds in his trust account and failed to provide a reasonable periodic accounting to a client. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Robert T. Garrity, Jr., Louisiana Bar Roll number 5951, be suspended from the prae-tice of law for a period of six months. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a one-year period of supervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    Nancy Williams, Wife of/and Franco VALOBRA v. Robert Allan NELSON and Jerome Garfield Smith, III as co-trustees of the Allan R. Louise S. Nelson Revocable Trust & the Allan R. Nelson Marital Trust (Trusts).
    No. 2014-C-164.
    Supreme Court of Louisiana.
    April 11, 2014.
   PER CURIAM.

[l]_|jThis matter is before the court regarding an exception of no cause of action. For purposes of determining the issues raised by the exception, all facts well-pleaded in the petition must be accepted as true. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

Plaintiff buyers allege that the sellers, given the option to choose in the disclosure form required by LSA-R.S. 9:3198 et seq. “yes,” “no,” or “no knowledge,” checked the “no” boxes for each inquiry regarding defects in the property, but later, after defects were discovered, claimed to never have been in a position to know of any defects that may have existed in the premises.

Plaintiffs specifically allege that:

Defendants failed to advise the plaintiffs that they were not in a position to know one way or another whether the premises contained defects and thus intentionally misled the plaintiffs into believing that the defendants executed the disclosure form with knowledge of that which they stated. [That there were no defects]

LSA-R.S. 9:3198(B)(1) provides:

The seller shall complete the property disclosure document in good faith to the best of the seller’s belief and knowledge as of the date the disclosure is completed and signed by the seller. If the seller has no knowledge or information required by the disclosure document, the seller shall so indicate on the disclosure statement and shall be in compliance with this Chapter. [Emphasis added.]

| ^Plaintiffs further allege that by misrepresenting the degree and quality of their knowledge of the premises, the sellers were in bad faith and fraudulently induced buyers to execute a waiver of redhibition, which plaintiffs allege to be void.

The court of appeal sustained the exception of no cause of action, stating that plaintiffs were required to plead actual knowledge of defects on the part of sellers, presumably relying upon LSA-C.C. art. 2548, which provides, in pertinent part, “A buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have.” (Emphasis added.)

Here, it seems the sellers wish to avoid being deemed to have declared that the thing sold had a quality (no defects) that they knew it did not have by claiming that they did not know, one way or another, because they were not in a position to know, whether the thing they sold had defects or not (and thus their representation that the thing sold had “no” defects is excused).

If this argument is accepted and the exception is maintained, the plaintiffs will have to provide proof of actual knowledge of defects on the part of the seller in order to prevail at trial, whereas ordinarily plaintiffs need only prove that the thing sold contained defects, regardless of knowledge thereof on the part of the seller. LSA-C.C. art. 2520 et seq.

We do not believe that a seller can represent a thing to have no defects in order to procure a waiver of redhibition and then claim that they were not in a position to know whether there were defects or not, as alleged by the plaintiffs, while using the waiver of redhibition to require the buyer to prove actual knowledge of the defect by the seller rather than merely that the thing sold contained a defect which rendered it useless (regardless of the seller’s knowledge [3of same). Sellers cannot avoid their representation of no defects by claiming “we really didn’t know.”

Plaintiffs have specifically alleged that the waiver of redhibition was obtained by fraud, thus it cannot be presumed “otherwise effective.” Plaintiffs have stated a cause of action to challenge the validity of the waiver and are entitled to litigate this threshold issue, which will determine the proof required of them on their redhibition claim.

Accordingly, the ruling of the lower courts is reversed and the exception of no cause of action is hereby denied. This case is remanded to the district court for further proceedings, consistent with the views expressed herein.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Michael LAWRENCE.
    No. 2014-KK-0081.
    Supreme Court of Louisiana.
    April 11, 2014.
   PER CURIAM.

| Writ granted. The sentence imposed is vacated and this case is remanded for resentencing. We agree with Judge Tobi-as that “the trial court failed to follow the procedures required by law and jurisprudence to deviate from imposing the statutory minimum sentence under the Habitual Offender Law.” State v. Lawrence, 13-1245 (La.App. 4 Cir. 12/11/13) (Tobias, J., dissenting). To overcome the presumption that a mandatory penalty prescribed by the legislature is constitutional as applied to a particular offender, a trial court must make two findings on the record. First, the judge must find clear and convincing evidence that the offender is exceptional, “which in this context means that because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 676 (internal quotation marks and citation omitted). Second, because a trial judge “is not free to sentence a defendant to whatever sentence he feels is appropriate under the circumstances,” but “must sentence the defendant to the longest sentence which is not constitutionally excessive,” the judge must “articulate specific reasons why the sentence he imposes instead of the statutory mandatory minimum is the longest sentence which is not excessive under the Louisiana Constitution.” Id. at 8-9, 709 So.2d at 677. The court must in any event impose sentence on both counts and indicate whether one of both counts has been enhanced under the provisions of La.R.S. 15:529.1. La.C.Cr.P. art. 879; State v. Fairley, 597 So.2d 1081, 1082 (La. App. 2d Cir.1992) (“The trial court is required to pronounce a determinant sentence for each of the two' counts for which the defendant was convicted.... ”).

SENTENCE VACATED; REMANDED FOR RESENTENCING.

JOHNSON, C.J., dissents.

KNOLL, J., dissents.


author: PARRO, J.

text:
    James P. BRUCE v. Antoinette St. Pierre BRUCE.
    No. 2012 CA 1748.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 9, 2013.
    Rehearing Denied Sept. 10, 2013.

      Leslie J. Clement, Jr., Thibodaux, LA, for Plaintiff-Appellee, James P. Bruce.
    Thomas E. Dunn, Mandeville, LA, for Defendant-Appellant, Antoinette St. Pierre Bruce.
    Eugene G. Gouaux, III, Lockport, LA, for Appellant, S.J.B.
    Before PARRO, WELCH, and KLINE, JJ.

      . Judge William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   PARRO, J.

12Appellant challenges a judgment of the trial court that nullified an act of acknowledgment of paternity executed by the plaintiff, as well as a judgment of the trial court that overruled the peremptory exception pleading the objection of prescription filed by the appellant. For the reasons that follow, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

James P. Bruce and Antoinette St. Pierre Bruce were married on February 15, 2003. No children were born during this marriage. However, on November 12, 2004, James signed an authentic act before a notary public and two witnesses declaring that he was the biological father of S.J.B., the minor child born to Antoinette on September 6, 2001.

Thereafter, on March 29, 2012, James filed a petition for divorce, in which he further sought to nullify or revoke the act of acknowledgment of paternity he had signed with regard to S.J.B. In this petition, James alleged that he believed that S.J.B. was not his biological child and that he had been induced to sign the act of acknowledgment of paternity by fraud, duress, or material mistake of fact. James further requested that paternity testing be performed in order to determine whether he was the biological father of S.J.B. The paternity test ultimately revealed that James was not, in fact, the biological father of S.J.B.

In response, Antoinette filed a peremptory exception pleading the objection of prescription. In her exception, Antoinette argued, among other things, that James could not maintain his action to revoke the act of acknowledgment of paternity, because he had not filed it within the two-year period provided by LSA-R.S. 9:406. James countered that LSA-R.S. 9:406 was inapplicable to this matter and that, because he was not the biological father of S.J.B., the act of acknowledgment was an absolute nullity, which prevented the ^application of any prescriptive period to this matter.

After a hearing, the trial court determined that LSA-R.S. 9:406 was not applicable to the act of acknowledgment of paternity signed by James in this matter; therefore, the trial court overruled the exception of prescription filed by Antoinette. In addition, because the paternity test had proven that James was not the biological father of S.J.B., the trial court nullified the act of acknowledgment of paternity filed by James and declared James not to be the father of S.J.B. The trial court signed two separate judgments in accordance with these rulings. Antoinette has appealed both judgments.

DISCUSSION

On appeal, Antoinette has assigned several errors for this court’s review. However, the primary issue before this court is whether the trial court legally erred in determining that LSA-R.S. 9:406, as amended by 2008 La. Acts, No. 533, § 1, was not applicable to the act of acknowledgment of paternity signed by James in this matter.

James signed the act of acknowledgment of paternity in this matter on November 12, 2004. At that time and prior to the enactment of LSA-R.S. 9:406, LSA-R.S. 9:392 provided, in pertinent part:

A. Prior to the execution of a declaration of acknowledgment pursuant to Civil Code Article 203, the notary shall provide in writing, and orally or by directing them to video or audio presentations, the party or parties making the declaration of the following:
* ⅝ ⅜
(7)(a) A party who executed a notarial act of acknowledgment may rescind the act, without cause, before the earlier of the following:
(i) Sixty days after the signing of the act, in a judicial hearing for the limited purpose of rescinding the acknowledgment.
|4(ii)A judicial hearing relating to the child, including a child support proceeding, wherein the affiant to the notarial act of acknowledgment is a party to the proceeding.
(b)Thereafter, the acknowledgment of paternity may be voided only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, or material mistake of fact, or that the father is not the biological father.
(8) All parties to the action have any other rights and responsibilities which may be afforded by law now or in the future.

No time limitation for filing an action to revoke an acknowledgment of paternity for the reasons enumerated in LSA-R.S. 9:392(A)(7)(b) was provided in the statute.

By 2006 La. Acts, No. 344, § 4, the legislature enacted LSA-R.S. 9:406, which became effective on June 13, 2006, and provided:

A. A person who executed an authentic act of acknowledgment may, without cause, revoke it before the earlier of:
(1) Sixty days of the signing of the authentic act of acknowledgment in a judicial hearing for the limited purpose of revoking the acknowledgment or declaration.
(2) A judicial hearing relating to the child, including a child support proceeding, wherein the affiant to the authentic act of acknowledgment is a party to the proceeding.
B. At any time, a person who executed an authentic act of acknowledgment may petition the court to rescind such acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.
C. Except for good cause shown, the court shall not suspend during the pen-dency of this proceeding any legal obligations, including a support obligation, of the person who petitions the court to revoke or rescind the authentic act of acknowledgment under this Section. (Emphasis added.)

As demonstrated by the emphasized language above, LSA-R.S. 9:406, as originally enacted, also failed to provide a time limitation within which a petition to rescind an act of acknowledgment could be filed when, as in this Lease, the person filing was not the biological parent of the child. In fact, the statute specifically authorizes such petitions to be filed “at any time.”

However, pursuant to 2008 La. Acts, No. 533, § 1, the legislature amended LSA-R.S. 9:406 to establish a prescriptive period for filing an action to revoke an authentic act of acknowledgment of paternity. As amended, LSA-R.S. 9:406 provided, in pertinent part:

B. (1) If the notarial act of acknowledgment has not been revoked within sixty days in accordance with the provisions of Subsection A of this Section, a person who executed an authentic act of acknowledgment may petition the court to revoke such acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.
(2) The mover shall institute the proceeding by ordinary process, within a two-year period commencing with the execution of the authentic act of acknowledgment of paternity, in a court of competent jurisdiction upon notice to the other party who executed the notarial act of acknowledgment and other necessary parties including the office of family support, support enforcement services of the Department of Social Services. If the court finds based upon the evidence presented at the hearing that there is substantial likelihood that fraud, duress, material mistake of fact or error existed in the execution of the act or that the person who executed the authentic act of acknowledgment is not the biological father, then, and only then, the court shall order genetic tests pursuant to R.S. 9:396. Nothing herein shall preclude the mover from presenting any other evidence as a substitute for the genetic tests if it is not possible to conduct such tests. (Emphasis added.)

Thus, pursuant to that amended version of LSA-R.S. 9:406, a person seeking to revoke a notarial act of acknowledgment must institute the proceeding to revoke within two years of the date of the execution of the authentic act of acknowledgment of paternity.

In State ex rel. AC v. MD, 10-1799 (La.App. 1st Cir. 6/17/11), 70 So.3d 159, 163, this court determined that LSA-R.S. 9:406 could only apply prospectively, because to do otherwise would divest a party of a vested property right in violation of the due process guarantees of the state and federal constitutions. In that case, MD had executed an authentic act of | (¡acknowledgment of paternity of MKD in 2005; however, he was apparently not the biological father of MKD. When he executed the authentic act of acknowledgment of paternity, he acquired the right to revoke the acknowledgment pursuant to LSA-R.S. 9:392(A)(7)(b), which did not establish a time limitation on this right to revoke, because MD was not the biological father of MKD. This court noted that the legislature amended LSA-R.S. 9:406 in 2008 to establish a two-year prescriptive period on filing actions to revoke authentic acts of acknowledgment of paternity; however, the statute did not provide a reasonable time for those who had executed authentic acts of acknowledgment prior to this amendment to assert their rights following its enactment. State ex rel. AC v. MD, 70 So.3d at 162-63.

Because MD had executed his act of acknowledgment of paternity in 2005, this court determined that retroactive application of LSA-R.S. 9:406, as amended in 2008, would have resulted in a finding that MD’s right to revoke the act of acknowledgment of paternity had prescribed in 2007, approximately one year prior to the enactment of the relevant amendment to LSA-R.S. 9:406. This court further concluded that, to retroactively apply the amended version of LSA-R.S. 9:406 to MD’s right to file an action to revoke, in the absence of any provision allowing him a reasonable time to assert his rights, would essentially divest MD of the vested right he had acquired and would violate his constitutional rights. Accordingly, this court concluded that the 2008 amendment, which imposed a two-year prescriptive limit on a party’s right of action to revoke an acknowledgment of paternity, could only apply prospectively. State ex rel. AC v. MD, 70 So.3d at 163.

Likewise, in the case currently before this court, James signed his act of acknowledgment of paternity in November 2004, and pursuant to LSA-R.S. 9:392(A)(7)(b), he acquired the right to revoke the act of acknowledgment of |7paternity, without any time limitation, as long as certain conditions were met. Because James was later determined not to be the father of S.J.B., he met the conditions imposed by LSA-R.S. 9:392(A)(7)(b).

As previously noted, the legislature amended LSA-R.S. 9:406 in 2008 to provide for a prescriptive period within which the action to revoke the act of acknowledgment of paternity had to be filed. According to the amendment, such actions must be filed within two years of the date of the execution of the act of acknowledgment of paternity. In this case, since James signed his act of acknowledgment of pater-nity in 2004, a retroactive application of LSA-R.S. 9:406, as amended in 2008, would have resulted in a finding that James’s right to revoke the act of acknowledgment of paternity had prescribed in 2006, which was two years prior to the enactment of the amendment that established the time limitation. As in State ex rel. AC v. MD, such a retroactive application of the statute, in the absence of any provision allowing him a reasonable time to assert his rights, would essentially divest James of the vested right he had acquired and would violate his constitutional rights.

Antoinette does not truly dispute that the statute should only be applied prospectively. Nevertheless, she contends that James should have filed his action earlier than he did. According to Antoinette, James should have filed his action to revoke within two years of the effective date of the amendment to LSA-R.S. 9:406. She notes that while the court in State ex rel. AC v. MD only applied the statute prospectively, MP filed his action to revoke on July 7, 2009, which was approximately one year after the effective date of the amendment to the statute. Thus, she concludes that MP’s action was timely, unlike James’s.

|8A plain reading of LSA-R.S. 9:406, as amended in 2008, establishes that the two-year period within which the action to revoke must be filed begins to run only from the date of the execution of the authentic act of acknowledgment of paternity. The statute does not provide any alternative date from which the two-year period can begin to run, such as the date of its enactment or the date it became effective, as Antoinette contends. Furthermore, it does not grant those persons, who signed acts of acknowledgment prior to the enactment of the amendment, a reasonable time within which to assert their rights. Accordingly, we find no error in the trial court’s finding that LSA-R.S. 9:406 does not apply to this matter. We further find no error in the trial court’s judgments overruling the exception of prescription and nullifying the authentic act of acknowledgment.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court. All costs of this appeal are assessed to the appellant, Antoinette St. Pierre Bruce.

AFFIRMED.

      . The initials of the minor child, as his name appeared on the original birth certificate, were "S.J.K.”

      . The first judgment declared the nullity of the act of acknowledgment of paternity, and the second judgment merely dismissed the exception of prescription.

      . S.J.B. originally filed notice that he was also appealing the judgments; however, he apparently failed to follow through with the appeal, even though he filed an appellate brief in which he adopted the assignment of errors and argument of Antoinette.

      .The current version of LSA-R.S. 9:392 also fails to provide a prescriptive period for filing an action to revoke an acknowledgment of paternity based on the causes listed in subpar-agraph (A)(7).

      . As noted previously, at the time James signed his act of acknowledgment, LSA-R.S. 9:392(A)(7)(b) authorized an act of acknowledgment to be voided upon clear and convincing proof of fraud, duress, or material mistake of fact, or that the father was not the biological father.

      . James filed his action to revoke on March 29, 2012.

      . 2008 La. Acts, No. 533, § 1, which amended LSA-R.S. 9:406, did not provide a specific effective date for its changes to take effect; therefore, pursuant to the version of LSA-Const. Art. Ill, § 19, in effect in 2008, the amendment became effective on August 15, 2008.