CAMPUS COMMUNICATIONS, INC., Appellant/Cross-Appellee,
v.
Tеresa EARNHARDT, and the Estate of Dale Earnhardt, by and through its Personal Representative, Teresa Earnhardt, for and on behalf of the Estate and for the Survivors, et al., Appellees/Cross-Appellants.
District Court of Appeal of Florida, Fifth District.
*390 Thomas R. Julin & D. Patricia Wallace of Hunton & Williams, Miami, for Appellant/Cross-Appellee.
Charles T. Canady, General Counsel, and Simone Marstiller, Assistant General Counsel, Executive Office of the Governor, Tallahassee, Amicus Curiae, for Governor Jeb Bush.
Jonathan D. Kaney, Jr. and Daniel R. Bischof of Cobb, Cole & Bell, Daytona Beach, Amici Curiae, for Florida Society of *391 Newspaper Editors, First Amendment Foundation, Reporters Committee for Freedom of the Press, and Student Press Law Center.
E. Thom Rumberger and Ernest H. Eubanks, Jr. of Rumberger, Kirk & Caldwell, P.A., Orlando, and Parker D. Thomson and Carol A. Licko of Hogan & Hartson, LLP, Miami, and Jon L. Mills and Timothy McLendon, Gainesville, and Dickson M. Lupo and Judson Graves of Alston & Bird, LLP, Charlotte, NC, for Appellees/Cross-Appellants Teresa Earnhardt and the Estate of Dale Earnhardt, by and through its Personal Representative, Teresa Earnhardt, for and on behalf of the Estate and for the Survivors.
Thomas E. Warner, Solicitor General, and T. Kent Wetherell, II, Deputy Solicitor General, Office of the Solicitor General, Tallahassee, for Appellee/Cross-Appellant State of Florida.
Daniel D. Eckert, County Attorney, Deland, for Appellee/Cross-Appellant County of Volusia, Office of the Medical Examiner.
SAWAYA, J.
Campus Communications, Inc. (Campus) appeals the final judgment finding Chapter 2001-1, codified at section 406.135, Florida Statutes (2001), constitutional and retroactively applicable to the request made by Campus to view and copy the autopsy photographs of R. Dale Earnhardt.[1] We affirm.
Factual Background And Issues
Mr. Earnhardt was a famous and very successful race car driver who became involved in a fatal crash during the Daytona 500 race on February 18, 2001. He wаs taken to Halifax Medical Center where, sadly, life-saving efforts were unsuccessful. Mr. Earnhardt was pronounced dead on that same date.
An autopsy was performed on February 19, 2001, by an assistant to the Volusia County Medical Examiner in accordance with Florida law governing accidental deaths.[2] In performing the autopsy, thirty-three photographs were taken which, according to the uncontradicted testimony of the medical examiner, were not of "diagnostic quality" and were taken solely as a back-up to the dictation system utilized by the medical examiner to record his findings for inclusion in a written autopsy report.
The written autopsy report, post-crash photographs of Mr. Earnhardt's car, a toxicology report and a sketch showing the markings on Mr. Earnhardt's body were promptly made available to the public. The autopsy photographs, however, were not released because on February 22, 2001, Mrs. Earnhardt sought and obtained an ex parte injunction precluding the medical examiner from releasing them. This injunction *392 was obtained before any request for access to the photographs was made.
On February 23, 2001, the Orlando Sentinel newspaper requested the autopsy photographs. Michael Uribe, who operates a for-profit website on which he publishes celebrity autopsy photographs, also made a request for the photographs. Mr. Uribe had previously published the autopsy photographs of Neil Bonnett and Rodney Orr, both of whom were race car drivers killed in crashes at the Daytona International Speedway. Both requests were deniеd pursuant to the injunction.
The medical examiner, the Earnhardts and the newspaper interests represented by the Orlando Sentinel subsequently entered into a mediation agreement whereby they agreed that the photographs would be examined by an expert in biomechanics who would issue a report and, thereafter, the photographs would be permanently sealed. Neither Campus nor Mr. Uribe participated in the mediated settlement and on the same day the agreement was reached, Campus made its request for the photographs.
On March 29, 2001, the Florida Legislature enacted section 406.135, which was signed by Governor Bush and became effective on that same date. Upon passage of the statute, the Earnhardts amended their request to include permanent injunctive relief under the statute. Campus filed a cross-claim against the medical examiner seeking an order under the Public Records Act requiring the medical examiner to allow inspection and copying of the photographs. Trial subsequently commenced, evidence and testimony were presented, and the trial court rendered its decision finding the statute constitutional and retroactively applicable to the requests made by Campus and Mr. Uribe.
The issues we are confronted with in the instant proceedings are 1) whether section 406.135 is overly broad and therefore unconstitutional; 2) whether the statute should be applied retroactively; and 3) whether the trial court erred in finding that Campus failed to establish good cause under the statute to allow inspection and copying of the photographs. We will proceed to address each issue in the order presented.
Constitutionality Of The Statute
General Principles and Legislative Findings
We begin our analysis with the generally accepted principle that "all laws are presumed constitutional" and "[t]he burden rests on the party challenging the law to show that it is invalid." Chicago Title Ins. Co. v. Butler,
Both the Florida Constitution and the Public Records Act allow for the creation of exemptions to the Act by the Legislature, provided the newly enacted exemption 1) serves an identifiable public purpose and 2) is no broader than necessary to meet that public purpose. Art. I, § 24(c), Fla. Const.; § 119.15(4)(b), Fla. Stat. (2001). As to the first requirement, the Legislature must specifically state the public necessity which justifies the exemption. Art. 1, § 24(c), Fla. Const. In ordеr to fulfill these constitutional and statutory requirements, the Legislature made the following findings:
The Legislature finds that it is a public necessity that photographs and video and audio recordings of an autopsy be made confidential and exempt from the requirements of section 119.07(1), Florida *393 Statutes, and Section 24(a) of Article I of the State Constitution. The Legislature finds that photographs or video or audio recordings of an autopsy depict or describe the deceased in graphic and often disturbing fashion. Such photographs or video or audio recordings may depict or describe the deceased nude, bruised, bloodied, broken, with bullet or other wounds, cut open, dismembered, or decapitated. As such, photographs or video or audio recordings of an autopsy are highly sensitive depictions or descriptions of the deceased which, if heard, viewed, copied or publicized, could result in trauma, sorrow, humiliation, or emotional injury to the immediate family of the deceased, as well as injury to the memory of the deceased. The Legislature notes that the existence of the World Wide Web and the proliferation of personal computers throughout the world encourages and promotes the wide dissemination of photographs and video and audio recordings 24 hours a day and that widespread unauthorized dissemination of autopsy photographs and video and audio recordings would subject the immediate family of the deceased to continuous injury. The Legislature further notes that there continue to be other types of available information, such as the autopsy report, which are less intrusive and injurious to the immediate family members of the deceased and which continue to provide for public oversight. The Legislature further finds that the exemption provided in this act should be given retroactive application because it is remedial in nature.
Ch.2001-1, § 2, at 2, Laws of Fla.
We will address the specificity requirement first.
The Specificity Requirement
As to the requirement that the exemption serve an identifiable public purpose, the Legislature must "state with specificity the public necessity justifying the exemption." Art. I, § 24(c), Fla. Const. We find that chapter 2001-1, Laws of Florida, clearly satisfies this requirement. The legislative findings detail the graphic and often gruesome nature of such autopsy photographs and the trauma and emotional injury the immediate family of the deceased would likely suffer if these records were disclosed and disseminated to the public. The Legislature also recognizes the potential for exacerbation of such injury in light of the ever increasing use of the Internet and the proliferation of personal computers. These findings are supported by the evidence and testimony introduced in the proceedings before the trial court.
We need not address the specificity requirement any further because Campus does not forcefully challenge the Legislature's statement of public necessity. Rather, Campus focuses on the argument that the exemption is overly broad.
The Exemption Must Not Be Overly Broad
Campus contends that section 406.135 is unconstitutional because it is broader than necessary to meet the statute's public purpose. Specifically, Campus argues that the finding made by the Legislature that some photographs "may" show gruesome scenes and thаt trauma "could" result from publication of the autopsy photographs is explicit recognition that photographs are not always gruesome and that trauma does not always result from their viewing. Therefore, Campus asserts, the Legislature exempted more records than were necessary to serve the purpose of the statute.[3]*394 We disagree that the statute is overly broad.
We find the scope of section 406.135 to be specific and narrow: it applies only to autopsy photographs and audio and video recordings of the autopsy. It does not apply to other records of the autopsy such as the written autopsy report and, therefore, those materials remain unrestricted public records. Moreover, in the instant case, the trial court found that there was no information that could be obtained frоm the autopsy photographs of Mr. Earnhardt that was not contained in the autopsy report which was published to the parties and the public.
Equally important, despite the fact that autopsy photographs and audio and video recordings are no longer considered unrestricted public records, is the inclusion of the good cause provisions which do allow the publication of these restricted records if the statutory criteria are established. See § 406.135(2)(a), Fla. Stat. (2001). Thus the fact that the Legislature used "may," "could" and "often" is not evidence that the exemption is overly broad, but rather a recognition that circumstances may exist which would justify disclosure of autopsy photographs and audio and video recordings upon a showing of good cause. Moreover, use of the absolute terminology advocated by Campus such as "would," "always" and "must" would foreclose the possibility that disclosure could be made even upon a showing of good cause.
We find Bryan v. State,
Campus next assails the "good cause" provision of the statute, protesting that the Legislature did not define this term.[4] We find that this argument lacks *395 merit because the statute requires consideration of specific criteria to determine whether good cause has been shown. See § 406.135(2)(a), Fla. Stat. (2001). Moreover, good cause is not a novel concept to our jurisprudence. Florida courts have applied good cause provisions in a variety of contexts, including the Public Records Act. See, e.g., § 119.07(7)(a), Fla. Stat. (2001); Department of Health & Rehabilitative Servs. v. Gainesville Sun Publ'g Co.,
We find that section 406.135 serves an identifiable public purpose, is no broader than necessary to meet that public purpose and was enacted in accordance with the constitutional and legislative requirements we have previously discussed. The presumption of constitutionality has not been overcome by Campus. Therefore, we conclude that section 406.135 is constitutional. The next issue we must address is whether retroactive application of the statute is proper.
Retroactive Application
General Principles
When considering whether a statute should be retroactively applied, the courts should determine 1) whether there is clear evidence that the Legislature intended to apply the statute retrospectively; and 2) whether retroactive application is constitutionally permissible. Metropolitan Dade County v. Chase Fed. Hous. Corp.,
The first inquiry poses a question of statutory construction and requires application of a legal presumption which provides that statutes, in the absence of clear legislative intent to the contrary, should apply prospectively. Legislative intent must be determined primarily from the language of the statute and "[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meаning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Holly v. Auld,
*396 In the instant case, the Legislature was clear in its intent, twice expressly stating that section 406.135 was to be applied retroactively. § 406.135(4), Fla. Stat. (2001) ("This exemption shall be given retroactive application."); Ch.2001-1, § 2, at 2, Laws of Fla. ("The Legislature further finds that the exemption provided in this act should be given retroactive application because it is remedial in nature."). Therefore, we should neither apply the general rules of statutory construction to the statute nor indulge the presumption in favor of prospective application. See Arrow Air, Inc. v. Walsh,
In instances where the Legislature clearly expresses the intent that a statute is to be given retrospective application, as in the instant case, the courts will refuse to apply the statute retroactively "if the statute impairs vested rights, creates new obligations, or imposes new penalties." State Farm Mut. Auto. Ins. Co. v. Laforet,
As will be discussed, we find that section 406.135 is remedial and reject the argument advanced by Campus that its retroactive application does abrogate or impair a vested right.
Section 406.135 Is Remedial
One of the primary purposes of enacting remedial legislation is to correct or remedy a problem or redress an injury. See Roberts v. Butterworth,
In Desjardins, for example, the City of Gainesville was sued by the plaintiff who claimed that he sustained injuries in an automobile accident caused by the City's negligent inspection and maintenance of a traffic signal. The plaintiff served upon the City a request to produce its litigation file under the Public Records Act. The City declined the request, arguing that the file was protected by the work product rule and the attorney-client privilege. The trial court entered an order requiring the City to produce the file and refused to retroactively apply the statutory exemption of section 119.07(3)(o), Florida Statutes, which exempted from disclosure the work product of the government's attorneys. The trial court refused to apply the *397 exemption because the statute was enacted after the cause of action accrued. The Florida Supreme Court held that it was error not to apply the statute retroactively because it was enacted to remedy "the imbalanced posture and the disadvantaged status of public entities involved in litigation under the Public Records Act" prior to enactment of the exemption contained in the statute. Desjardins,
In Roberts, a defendant sought disclosure of all public records held by the Attorney General's Office related to himself. He аppealed after the trial court found the records sought either were not public records or were exempt under the work product rule. On appeal, the defendant argued that the trial court erred in applying the statutory capital collateral litigation work product exemption retroactively to a public records request that pre-dated the effective date of the new exemption. The supreme court rejected this argument and held:
Even though this particular provision did not take effect until October 1, 1995, the legislative history indicates that the statute is remedial in nature and thus can be applied retroactively. See City of Orlando v. Desjardins,493 So.2d 1027 (Fla.1986) (holding that statutory work product exemption in chapter 119 was remedial in nature and thus applicable to cause of action that accrued prior to its effective date).
Roberts,
Similarly, the Legislature perceived the public necessity to correct the problems associated with public dissemination of autopsy photographs, especially over the Internet. Finding that this sort of public display of a decedent's remains is not only injurious to the family members of the decedent, but morally reprehensible and anathema to the citizens of Florida, the Legislature enacted sеction 406.135 to mitigate the harsh provisions of the Act that would allow public disclosure of such records. Realizing the necessity for immediate resolution of this problem, the Legislature declared that "the exemption provided in this act should be given retroactive application because it is remedial in nature." Ch.2001-1, § 2, at 2, Laws of Fla.[6]
Campus argues, however, that labeling a statute remedial does not necessarily mean that it should be automatically applied *398 retroactively if it impairs vested rights, creates new obligations, or imposes new penalties. We find language in Chase Federal, Laforet, and Arrow Air that supports this argument. See also Catinella. Therefore, because Campus contends that section 406.135 abrogates Campus's vested right to inspect and copy the autopsy photographs, we will next consider whether retroactive application of the statutе should be prohibited on this ground.
Retroactive Application Of Section 406.135
Does Not Abrogate A Vested Right
The courts have been loath to formulate a definition of "vested right" that can be applied in all cases with precision and certainty. A general definition is found in City of Sanford v. McClelland,
We are here concerned with the concept of vested rights in the context of the constitutional proscription against retrospective application of legislation. Within this context, a vested right is a "fixed" right that cannot be abrogated or taken away without violation of the possessor's right to due process. See Chase Federal,
While the Public Records Act grants to Florida citizens the right to inspect and copy public records, "the legislature also has the prerogative to place reasonable restrictions on that right." Henderson,
In State v. White,
Moreover, the Florida courts have consistently recognized that the right to inspect and copy public records under the Public Records Act is a public right.[7] The United States Supreme Court has held that for purposes of determining whether it is appropriate to allow retroactive application of a statute, only private, and not public rights, mаy become vested in this constitutional sense. Hodges v. Snyder,
It is true that, as they contend, the private right of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation, but must be thereafter enforced by the court regardless of such legislation.
This rule, however, as held in the Wheeling Bridge Case, does not apply to a suit brought for the enforcement of a public right, which, even after it has been established by the judgment of the court, may be annulled by subsequеnt legislation and should not be thereafter enforced; although, in so far as a private right has been incidentally established by such judgment, as for special damages to the plaintiff or for his costs, it may not be thus taken away....
In the Wheeling Bridge Case, as in the Clinton Bridge Case, the public right involved was that of abating an obstruction to the navigation of a river. The right involved in the present suit, of enjoining the maintenance of an illegal school district and the issuance of its bonds, is likewise a public right shared by the plaintiffs with all other resident taxpayers. And while in the Wheeling Bridge Case the bill was filed by the State, although partly in its proprietary capacity as the owner of certain canals and railways, the doctrine that a judgment declaring a public right may be annulled by subsequent legislation, applies with like force in the presеnt suit, although brought by individuals primarily for their own benefit; the right involved and adjudged, in the one case as in the other, being public, and not private.
Like the Court in Hodges, the Florida Supreme Court, in Chase Federal, held that due process considerations prevent the retroactive application of a statute when vested rights are abrogated. The Florida courts have consistently held that due process protects private rights. J.B. v. Florida Dep't of Children & Family Servs.,
If we were to accept the argument advanced by Campus that once а public record is created, a member of the public has a vested right to inspect and copy it, we would have to conclude that a statute that establishes an exception to the Public Records Act may never be applied retroactively. Adoption of such a rule would eliminate the Legislature's ability to enact remedial legislation to immediately resolve problems caused by public disclosure and to mitigate the sometimes harsh provisions of the Public Records Act. Moreover, adoption of such a rule would require us to ignore decisions of the courts of this state that have given retroactive application to such statutory exemptions. See Roberts; Desjardins. This we cannot do. Hence we reject the argument advanced by Campus that retroactive applicatiоn of section 406.135 abrogates a vested right.
The last issue we must address is whether the trial court erred in finding that Campus failed to establish good cause under section 406.135.
Good Cause
Campus argues that even if section 406.135 is constitutional, the trial court erred in finding that Campus failed to establish good cause for release of the photographs. The statute requires consideration of the following factors in determining good cause: 1) whether disclosure is necessary so that the public can evaluate the government's performance; 2) the seriousness of the intrusion into the family's right to privacy; 3) whether disclosure is the least intrusive method available; and 4) the availability of similar information in other public records, regardless of form. § 406.135(2)(a), Fla. Stat. (2001).
As to the first factor, while the public obviously has a great interest in making certain its govеrnment, the medical examiner in the instant case, carries out its duties in a responsible fashion, that interest cannot be served by viewing the autopsy photographs of Mr. Earnhardt because the uncontradicted testimony establishes that the photographs are not of diagnostic quality. Moreover, the testimony further establishes that there is nothing that can be discerned from the photographs that is not contained in the autopsy report and other materials that have been released to Campus and the public. If it *402 cannot be determined from the photographs that the cause of death was anything other than what the medical examiner concluded, the photographs will not aid in assuring that the government is performing up to the required standard. Regarding the argument advanced by Campus that the photographs are needed to evaluate NASCAR safety requirements, the trial court found, and we agree, that the safety requirements of NASCAR, a private entity, do not implicate the public's interest in evaluating governmental performance sufficient to release the photographs.
The second factor weighs very heavily in favor of nondisclosure. The medical examiner testified that the photographs were "gruesome, grisly and highly disturbing," and the physician attending Mr. Earnhardt after the accident confirmed this. The trial court found that such publication would "be an indecent, outrageous, and intolerable invasion, and would cause deep and serious emotional pain, embarrassment, humiliation and sadness to Dale Earnhardt's surviving family members." It is evident from our review of the record that the publication оf the nude and dissected body of Mr. Earnhardt would cause his wife and children pain and sorrow beyond the poor power of our ability to express in words.
Regarding the third factor, the trial court found that there were no less intrusive means available for preventing trauma to the Earnhardt family. Campus argues that inspection alone would not cause a serious intrusion into the privacy rights of the Earnhardt family. However, the trial court rejected this argument, finding that the mere knowledge that the photographs would be accessible for inspection was the cause of overwhelming distress to the Earnhardt family.
The fourth factor also weighs in favor of nondisclosure. As we previously stated, the autopsy report and other information was made available to the public and, given the poor quality of the photographs and the fact that they were only made as a back-up to the medical examiner's dictation system, disclosure of the photographs would reveal nothing that is not contained in the autopsy records that were released.
The standard of review regarding issues of good cause requires us to determine whether the trial court abused its discretion in making its decision. See Palokonis v. EGR Enters. Inc.,
Conclusion
The Florida Constitution gives every citizen the right to inspect and copy public records so that all may have the opportunity to see and know how the government functions. It is also a declared constitutional principle that every individual has a right of privacy, and while our constitution does not catalogue every matter that one can hold as private, autopsy photographs which display the remains of a deceased human being is certainly one of them. But we need not say so because the Legislature has said so and that is its prerogative, not ours. Thus our function here has not been to weigh these two constitutional rights with respect to autopsy photographs and determine whether the right that helps ensure an open government freely accessible by every citizen is more significant or profound than the right that preserves individual liberty and privacy. *403 Rather, our function has been to determine whether the Legislature has declared that the latter prevails over the former in a manner thаt is consistent with the constitutional provisions that bestow upon it the power to do so. We have fulfilled our judicial responsibility in this matter by determining whether section 406.135 was constitutionally enacted and whether it was properly applied under the facts and circumstances of the instant case. Having concluded that it was, we affirm the judgment under review.
We conclude our judicial responsibility by certifying to the Florida Supreme Court the following questions to be of great public importance:
1. IS SECTION 406.135 CONSTITUTIONAL?
2. IF SECTION 406.135 IS CONSTITUTIONAL, SHOULD IT BE APPLIED RETROACTIVELY?
AFFIRMED; QUESTIONS CERTIFIED.
PETERSON and GRIFFIN, JJ., concur.
NOTES
Notes
[1] Campus is the sole Appellant. Its position was supported by the brief of amici curiae: the Florida Society of Newspaper Editors, the First Amendment Foundation, the Reporters Committee for Freedom of the Press, and the Student Press Law Center. The Appellees are Teresa Earnhardt, the Estate of Dale Earnhardt, Dale Earnhardt Jr., Taylor Earnhardt, Dale Earnhardt, Inc., the Volusia County Office of the Medical Examiner, and the State of Florida. An amicus curiae brief was filed by Governor Jeb Bush supporting Appellees' position on the constitutionality of section 406.135. The cross-appeal filed by Appellees was abandoned.
[2] Section 406.11(1)(a)2., Florida Statutes (2001), provides that if a human being dies by accident in the State of Florida, the medical examiner of the district in which the death occurred or where the body is found "shall determine the cause of death and shall, for that purpose, make or have performed such examinations, investigations, and autopsies as he or she shall deem necessary or as shall be requested by the state attorney ...."
[3] Campus raises two other arguments: 1) the statute is unconstitutional beсause immediate family members may object and keep the records from being disclosed while other family members may not object to disclosure; and 2) the exemption is overly broad because the Legislature could have avoided the publication issue by simply allowing inspection alone. We find these arguments have little merit and therefore affirm the trial court as to these issues.
[4] Campus also argues that the good cause provision is an improper delegation to the judiciary of legislative authority. We reject this argument because the Legislature made the fundamental and primary policy declarations regarding disclosure of autopsy photographs and audio and video recordings of autopsies and has provided explicit and detailed guidelines and standards for the courts to apply in determining whether good cause has been established. See Askew v. Cross Key Waterways,
[5] See, e.g., Levine v. Kaplan,
[6] The evidence and testimony contained in the record in the instant case confirm the need for this remedial exemption. The trial court took judicial notice that numerous websites exist that display autopsy photographs. The record in the instant case also includes graphic and disturbing autopsy photоgraphs of NASCAR drivers Neil Bonnett and Rodney Orr which were published on Mr. Uribe's website the day before chapter 2001-1 became law. Mr. Bonnett's daughter and Mr. Orr's lather testified about the emotional distress caused by the publication and viewing of the autopsy photographs of their father and son and Mrs. Earnhardt testified concerning the emotional distress that would result from even the potential publication or public viewing of her deceased husband's autopsy photographs.
[7] See Memorial Hospital-West Volusia, Inc. v. News-Journal Corp.,
[8] As explained by the court in Department of Law Enforcement:
The basic due process guarantee of the Florida Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Art. I, § 9, Fla. Const. Substantive due process under the Florida Constitution protects the full panoply of individual rights from unwarranted encroachment by the government....
... Procedural due process under the Florida Constitution
guarantees to every citizen the right to have that course of legal procedure which has been established in our judicial system for the protection and enforcement of private rights.
Department of Law Enforcement,
[9] Mendly v. County of Los Angeles,