State v. Womack

127 So. 3d 839, 42 Media L. Rep. (BNA) 1323, 2013 WL 6282881, 2013 Fla. App. LEXIS 19068
CourtDistrict Court of Appeal of Florida
DecidedNovember 27, 2013
DocketNo. 2D13-1925
StatusPublished
Cited by1 cases

This text of 127 So. 3d 839 (State v. Womack) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Womack, 127 So. 3d 839, 42 Media L. Rep. (BNA) 1323, 2013 WL 6282881, 2013 Fla. App. LEXIS 19068 (Fla. Ct. App. 2013).

Opinion

PER CURIAM.

The State appeals a trial court order repressing a grand jury presentment after five parties argued various parts of the presentment should be expunged or repressed. These parties include: Lisa Womack, Chief of the Lakeland Police Department (LPD); Ann Dinges, former LPD Public Information Officer; Roger Mallory, LPD General Counsel;1 Doug Thomas, City Manager of Lakeland, Florida; and Gow Fields, Mayor of Lakeland, Florida. Because all of the expunged statements are lawful and proper, we reverse.

I. Legal Framework

“The question of whether statements in a presentment must be expunged, because they are unlawful or improper, is a question of law, not fact. Therefore, the trial court’s action is subject to plenary review by this court.” In re Grand Jury Investigation of Fla. Dep’t of Health & Rehabilitative Servs., 659 So.2d 347, 349-50 (Fla. 1st DCA 1995). Our review is limited to the content of the four corners of the presentment. Id. at 349 (“The factual foundation requirement does not ... require a circuit court to review the evidence presented to the grand jury. It is sufficient if the grand jury’s comments have a factual foundation in the presentment itself. In other words, the grand jury’s factual findings are not themselves subject to reversal.”). As such, no deference is given to the trial court’s ruling.

At issue in this case is the application of section 905.28(1), Florida Statutes (2012), which provides:

A report or presentment of the grand jury relating to an individual which is not accompanied by a true bill or indictment is confidential and exempt from [842]*842the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution and shall not be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the circuit court a motion to repress or expunge the report or that portion which is improper and unlawful.

As both parties acknowledge, Miami Herald Publishing Co. v. Marko, 352 So.2d 518 (Fla.1977), provides important insight into how courts should apply section 905.28. Section 905.28 provides individuals who “may be exposed to criticism, scorn, or recommendations unfavorable to their reputation” a means to prevent publication of a presentment. Id. at 520. This danger alone, however, does not justify ex-punction or repression.

After all, a grand jury’s power to investigate “specific instances of criminality or general activities of public institutions and personnel” is broad. Id. at 521.

Our grand juries have ... the right to express the view of the citizenry with respect to public bodies and officials in terms of a “presentment”.... It is inevitable under these circumstances that public officials will be subject to criticism and that, at a minimum, their private reputations will be exposed to opprobrium.

Id. at 522, 523 (“[A] grand jury may legally recommend the removal of public officials.”). Understanding this risk, the people of the State of Florida have continued to employ the grand jury as an investigative tool — the only limitation being that a grand jury’s report must be lawful and proper. See id. at 523 (acknowledging “the public’s general right to know”).

As the Florida Supreme Court previously stated:

A society governed by representative officials concomitantly requires citizen review of public action. The grand jury has proven a most effective and reliable mechanism for that purpose....
The benefits to be derived from this extraordinary exercise in citizen participation would be severely limited if the fruits of that activity were not available to the public on whose behalf it is undertaken. Implicit in the power of the grand jury to investigate and expose official misconduct is the right of the people to be informed of its findings.

Id. (footnote omitted). We reiterate, the “right of the people to be informed” is an important and necessary aspect of representative government. Id.

Returning to the specific limitations placed on grand jury authority:

[C]omments in a grand jury report are “lawful” if they are made by an otherwise legally constituted grand jury on a matter which the grand jury is legally empowered to investigate.... [C]om-ments in a grand jury report are “proper” if they have a “factual foundation in, and [are] germane to, the scope of proceedings for which the grand jury was convened.”

Malcolm Pirnie, Inc. v. Monroe Cnty. Grand Jury Report, Fall Term, 1987, 558 So.2d 139, 140 (Fla. 3d DCA 1990) (quoting Moore v. 1986 Grand Jury Report, 532 So.2d 1103, 1105 (Fla. 3d DCA 1988)). As noted above, it is lawful for grand juries to investigate the general activities of public institutions and personnel. Compare In re Grand Jury (Freeport Sch. Project) Winter Term, 1988, 544 So.2d 1104, 1106 (Fla. 1st DCA 1989) (“Grand jury investigations may ... encompass investigations of the actions of public bodies and officials in the use of public funds, including reporting or presenting findings and recommendations as to practices, procedures, incompetency, inefficiency, mistakes and misconduct involving public offices and monies.”), with [843]*843Kelly v. Sturgis, 453 So.2d 1179, 1182 (Fla. 5th DCA 1984) (“Section 905.28 ... does not authorize or legitimize a grand jury making an unfair commentary as to the actions or motives of a purely private citizen .... ”)• And if any fact supports a comment relevant to a lawful investigation, it should not be expunged or repressed. See Freeport Sch. Project, 544 So.2d at 1107.

It makes sense not to be overly rigid when evaluating factual support in the context of a grand jury presentment because of the confidentiality concerns underlying grand jury proceedings. See § 905.27. Consequently, as we evaluate factual findings in the presentment we remain mindful that it would not be appropriate to require complete disclosure of all of the sources and materials used by the grand jury to arrive at its findings, as a prerequisite to allowing those findings to stand. This is consistent with the court’s approach in Malcolm Pirnie, Inc. In that case the appellant argued, in part, that the following statements were conclusions or recommendations subject to the court’s review:

The grand jury ... found that as part of [a] study, MPI, as well as the city, erred in not examining the costs of a landfill operation and comparing them to the costs of an incinerator system. [Also,] ... MPI’s reports to the city on the incinerator project constituted a misrepresentation of the financial consequences accompanying the incinerator project.

558 So.2d at 140-41. The court found these statements were “findings of fact ... not subject to review....” Id. at 141.

II. Analysis

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127 So. 3d 839, 42 Media L. Rep. (BNA) 1323, 2013 WL 6282881, 2013 Fla. App. LEXIS 19068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-womack-fladistctapp-2013.