Leander Shaw, chief justice of the Florida Supreme Court, is doing a little legislative lobbying in an attempt to keep some judicial records out of a constitutional amendment guaranteeing access to public records.
Shaw met Monday with House Speaker T.K. Wetherell and has talked with others about a move that would leave all authority over judicial records in the hands of the Supreme Court.
In an interview Tuesday, Shaw said hesupports open government and open records, but believes too much openness will conflict with the court's need to have secrecy in certain types of matters. Shaw is vehemently opposed to letting lawmakers have any say in determining what judicial records are public.
Shaw doesn't want the public to see the memos that go back and forth between justices. Should a justice call another stupid or show his opinions in a memo, it should not be public, Shaw said he believes.
"Because what we say to one another could be misconstrued," Shaw added.
At issue is a constitutional amendment pending in the House and Senate. Attorney General Bob Butterworth called for the amendment in an effort to guarantee access to public records in all three branches of government. Butterworth is prepared to take the issue to the voters if legislators don't put a meaningful amendment on November's ballot.
Shaw's efforts could seriously jeopardize the move to pass an across-the-board right of access to public records in all three branches of government.
Shaw is getting help from the Florida Bar and some legislators who are none too eager to let the sun shine on their records, either.
"If judicial gets it, the legislature should get to do it," said House Attorney Tom Tedcastle.
Wetherell says he is unwilling to consider a constitutional amendment that would give the courts more authority over their records than legislators would have over theirs.
Butterworth says Floridians support his effort to guarantee future access to public records in a way that would not make that access subject to the whims of officials who come and go from the state's political scene.
If legislators fail to act on an amendment that gives access to records in all three branches, Butterworth said he will lead a campaign to collect the necessary signatures for a voter initiative that would guarantee a right of access to all Floridians. To get such an amendment on the ballot, supporters would have to collect more than 360,000 signatures by midsummer.
Butterworth is not attempting to take away the longstanding practice of allowing sensitive court records to be sealed in individual cases, but wants to make it harder for all three branches of government to limit access to ordinary administrative records.
He has proposed an amendment that would allow the courts to set their own rules, as they do now, in court proceedings. But when it comes to administrative and financial records, the court would have to undergo the scrutiny of legislators and gain passage of a law. That proposal would provide the courts the secrecy needed to protect rape victims, children who testify in divorce cases and the like, but would allow lawmakers to act as a check and balance against the judicial branch of government. Consideration of bills also would force debate on the issue into a public arena.
Versions of the constitutional amendment have passed the House and Senate, but lawmakers still are tinkering with the language in an effort to give up the least ground possible. Legislators want to protect their constituent mail and the drafts of bills from public view.
Shaw said he does not understand why some legislative leaders feel the Legislature should be allowed to make its own rules on public records if such a right is extended to the courts.
"I don't understand the comparison," Shaw said. "I can see places where the court needs it."
Shaw admitted that there have been moments in the past history of his court when records have been destroyed by judges, but said he does not know of such abuses having occurred in recent years.
In 1974 the Supreme Court was racked by a scandal that erupted after a member admitted flushing down the toilet a legal memo illegally supplied by one of the parties in a case.
It was the Supreme Court's November 1991 ruling that upended the state's longstanding tradition of open public records and led to the uproar.
In a case involving a House member's office finance records, the court said legislative records were not included in laws that made the records of agencies created by the legislature public. Reaching beyond the case at hand, the court said the legislature can't pass laws that force the judicial and executive branches of government to make their records public.
That ruling left Floridians with no guarantee of access to records that have been considered public since the first such law passed in 1909.