Filing # 9923734 Electronically Filed 02/05/2014 11:46:14 AM

RECEIVED, 2/5/2014 11:48:39, John A. Tomasino, Clerk, Supreme Court

IN THE SUPREME COURT OF FLORIDA

PAUL AUGUSTUS HOWELL,

Appellant,

vs. CASE NO.: SC14-167

STATE OF FLORIDA,

Appellee.

______________________________/

BRIEF AMICUS CURIAE OF FIRST AMENDMENT FOUNDATION, INC. IN SUPPORT OF APPELLANT

ANDREA FLYNN MOGENSEN, Esq. Law Office of Andrea Flynn Mogensen, P.A. 200 South Washington Blvd., Suite 7 Sarasota FL 34236 Fla. Bar. No. 0549681 Telephone: (941) 955-1066 Facsimile: (941) 866-7323 amogensen@sunshinelitigation.com (Primary) mbarfield@sunshinelitigation.com (Secondary)

Special Counsel, First Amendment Foundation

TABLE OF CONTENTS

Page

Table of Authorities .......................................................................................... iii

Identity and Interest of Amici Curiae ............................................................... vi

ARGUMENT .................................................................................................... 1

I. RULE 3.852 DOES NOT SUPPLANT THE CONSTITUTIONAL RIGHT UNDER ART. I, § 24, FLORIDA CONSTITUTION, OF A PRISONER SENTENCED TO DEATH TO OBTAIN ACCESS TO PUBLIC RECORDS.................................................................................1

A. History of Florida’s broad Public Records Act ........................................5

B. Right of access independent of rule 3.852 .............................................. 2

Conclusion ........................................................................................................ 8

Certificate of Service ........................................................................................ 9

Certificate of Compliance ............................................................................... 10

ii

TABLE OF AUTHORITIES

Cases Page

Baze v. Rees,

553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) ...............................1

Bd. of Pub. Instruction of Broward County v. Doran,

224 So. 2d 693 (Fla.1969) .................................................................................4

California First Amendment Coal. v. Woodford,

299 F.3d 868 (9th Cir. 2002) .......................................................................... 8

FBI v. Abramson,

456 U.S. 615 (1982) ........................................................................................ 4

Grapski v. City of Alachua,

31 So. 3d 193 (Fla. 1st DCA 2010)...................................................................4

In re Amendment to Florida Rules of Criminal Procedure-Capital Postconviction Pub. Records Prod.,

683 So. 2d 475 (Fla. 1996).................................................................................6

Mem’l Hosp. W. Volusia, Inc. v. News-Journal Corp.,

Monroe County v. Pigeon Key Historical Park, Inc.,

Johnson v. State,

904 So. 2d 400 (Fla. 2005)...............................................................................8

2002 WL 390687, 30 Media L. Rep. 1300 (Fla. 7th Jud. Cir. 2002)................4

647 So. 2d 857 (Fla. 3d DCA 1994)..................................................................3

iii

Morris Pub. Group, LLC v. Florida Dept. of Educ.,

38 Fla. L. Weekly D2345 (Fla. 1st DCA 2013)...............................................8

Muhammad v. State,

SC13-2105, 2013 WL 6869010 (Fla. 2013) .....................................................7

Nat’l Collegiate Athletic Ass’n v. Associated Press,

18 So. 3d 1201 (Fla. 1st DCA 2009)............................................................. 3-4

NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978) ......................................................................................... 4

Sims v. State,

753 So. 2d 66 (Fla. 2000)..................................................................................6

State v. McMillan,

49 Fla. 243, 38 So. 666 (Fla. 1905) ...................................................................2

Trop v. Dulles,

356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)..............................................8

Statutes and Rules

Art. I, sec. 24, Florida Constitution ...........................................................1-3, 6-7

Ch. 119, Florida Statutes (2013) ................................................................... 2, 6

Section 119.01(1), Florida Statutes (2013)...........................................................2

Sections 1390 and 1391, Revised Statutes of 1892 ..............................................2

iv

5 United States Code § 552................................................................................. 4

Fla. R. Crim. P. 3.852 ............................................................................... 1-2, 5, 7

Other

Sandra F. Chance & Christina Locke, The Government-in-the-Sunshine Law Then and Now: A Model for Implementing New Technologies Consistent With Florida’s Position As A Leader in Open Government, 35 Fla. St. U.L. Rev. 245, 257-58 (2008)..........................................................3

Patricia A. Gleason & Joslyn Wilson, The Florida Constitution’s Open Government Amendments: Article I, Section 24 and Article III, Section 4(e)—Let the Sunshine In!, 18 Nova Law R. 973, 979 n. 32 (1994).................3

v

IDENTITY AND INTERESTS OF AMICUS CURIAE

The First Amendment Foundation is a Florida nonprofit corporation

founded in 1984 by the Florida Press Association, the Florida Society of

Newspaper Editors, and the Florida Association of Broadcasters and represents

more than 200 members. The Foundation was created to advocate the public

interest in free speech, free press and open government and to provide training and

legal advocacy. The Foundation has filed numerous amicus briefs in the Florida

courts relating to Florida’s Public Records Act and access to judicial proceedings.

vi

ARGUMENT

I. RULE 3.852 DOES NOT SUPPLANT THE CONSTITUTIONAL RIGHT UNDER ART. I, § 24, FLORIDA CONSTITUTION, OF A PRISONER SENTENCED TO DEATH TO OBTAIN ACCESS TO PUBLIC RECORDS.

This appeal challenges the decision of the trial court judge who summarily

denied Howell’s public records requests in which he sought records from the

Florida Department of Corrections relating to its revised lethal injection protocol

after the agency substituted midazolam hydrochloride for pentobarbital as the first

drug in its three-drug lethal injection procedure.

Howell contends that, without the benefit of the records at an evidentiary

hearing, he is deprived of his constitutional right to access public records.

Consequently, Howell is significantly hampered in his ability to meet his burden to

demonstrate that the lethal injection protocol is likely to cause serious illness and

suffering, which would contravene the Eighth Amendment ban on cruel and

unusual punishment. Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d

420 (2008). Howell, barred from obtaining public records that he contends would

provide a basis for questioning the DOC’s revised lethal injection protocol, is

effectively blindfolded and hobbled in his ability to advance a claim that the

revised protocol violates his Eighth Amendment right to be free from cruel and

unusual punishment.

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The Foundation contends that Howell’s constitutional right to access public

records under Art. I, § 24(a) of the Florida Constitution cannot be supplanted by a

construction of rule 3.852 that deprives Howell of public records in his effort to

demonstrate that the revised lethal injection protocol itself violates the

constitutional prohibition on cruel and unusual punishment.

A. History of Florida’s broad Public Records Act

Florida’s long tradition of transparency in government—widely recognized

as the model for other states—started as early as 1892 when the legislature enacted

Sections 1390 and 1391, Revised Statutes of 1892, the precursor to what has come

to be known as the Public Records Act, Chapter 119 of the Florida Statutes. See

State v. McMillan, 49 Fla. 243, 246, 38 So. 666, 667 (1905) (recognizing no

limitations on a citizen’s right to access public records).

Section 119.01(1), Florida Statutes (2013), provides that:

It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.

Fla. Stat. § 119.01(1) (emphasis added).

In November 1992, Florida citizens overwhelmingly approved elevating the

right of access to public records to constitutional dimension by ratifying Article I,

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section 24, of the Florida Constitution.1 At the time, Florida became the only state

in the nation securing this right by constitutional decree. As one commentator

noted:

The breadth of Florida's Sunshine Law and the liberal construction of the statute by Florida courts has resulted in Florida's longstanding reputation as a national leader in open meetings laws. In the first Florida Open Government Law Manual, published in 1978 by Florida Attorney General Robert L. Shevin, and funded in part by The New York Times Company, Shevin described the state's open government laws as “among the broadest and most all-encompassing of their kind in the entire nation.”

Sandra F. Chance & Christina Locke, The Government-in-the-Sunshine Law Then

and Now: A Model for Implementing New Technologies Consistent with Florida’s

Position as a Leader in Open Government, 35 Fla. St. U.L. Rev. 245, 257-58

(2008).

In Nat’l Collegiate Athletic Ass’n v. Associated Press, 18 So. 3d 1201, 1212

(Fla. 1st DCA 2009), the First District Court of Appeal stated:

The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order.

1 “The amendment was favored by 83 percent of those voting.” Monroe County v. Pigeon Key Historical Park, Inc., 647 So.2d 857, 861 (Fla. 3d DCA 1994) (citing Patricia A. Gleason & Joslyn Wilson, The Florida Constitution’s Open Government Amendments: Article I, Section 24 and Article III, Section 4(e)—Let the Sunshine In!, 18 Nova Law R. 973, 979 n. 32 (1994).

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Id. at 1212. Florida’s Public Records Law was enacted for the benefit of the public.

“‘Statutes enacted for the public benefit should be interpreted most favorably to the

public.’” Grapski v. City of Alachua, 31 So. 3d 193, 198-99 (Fla. 1st DCA 2010)

(quoting Bd. of Pub. Instruction of Broward County v. Doran, 224 So. 2d 693, 699

(Fla.1969)).

Similarly, the United States Supreme Court has recognized that the federal

Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”)—Florida’s counterpart to

the Public Records Act—sets forth a policy of broad disclosure of government

documents in order “‘to ensure an informed citizenry, vital to the functioning of a

democratic society.’” FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB

v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)).

Construing the constitutional right of access to public records, one circuit

court judge stated that it is a fundamental right that can only be infringed by strict

scrutiny:

Rights reserved in the declaration of rights are fundamental rights ‘guaranteed to each Floridian against governmental intrusion.’ Traylor v. State, 596 So.2d 957, 964 (Fla.1992). Generally, constitutional doctrine protects fundamental rights by requiring strict scrutiny of infringing governmental acts.

Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp., 2002 WL 390687, 30 Media

L. Rep. 1300 (Fla. Cir. Ct. 2002) (emphasis added).

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Before the backdrop of these fundamental principles, the Foundation argues

that Howell’s constitutional right to access public records is no less than that of

every citizen who is imbued with the constitutional right to seek governmental

records. Thus, rule 3.852 must be strictly construed to comport with the protection

of Howell’s fundamental rights. Indeed, it is impossible to imagine a more

demanding entitlement to enforcement of a citizen’s right to access public records

than that presented here. Howell’s need for unbridled access to public records is

necessary to fully and effectively implement a multitude of additional

constitutional rights: the right to access the courts, Due Process, Equal Protection

and to be free from cruel and unusual punishment under the Eighth Amendment.

B. Right of access independent of rule 3.852

Rule 3.852, Florida Rules of Criminal Procedure, provides that a prisoner

under sentence of death is required to invoke the procedures set forth in the rule to

obtain access to public records. However, it is undisputed that the right of a death-

sentenced prisoner to obtain access to public records exists independent of rule

3.852.

As Howell points out, members of this Court made it clear when rule 3.852

was promulgated that a death-sentenced prisoner still retained the independent

right of constitutional dimension to access public records.

[i]t is important that we all remember that access to public records is guaranteed by the Florida Constitution regardless of whether that

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access is sought by a death row inmate, a disinterested citizen or a member of the media. We need to be very careful that we not end up with an outcome where a death-sentenced defendant, whose life may literally be affected, is barred from enforcing his constitutional right as a citizen to access to public records that any other citizen could routinely access. Indeed, that was the thrust of our initial pronouncement that our rule of discovery in capital postconviction proceedings was never intended to, and, indeed, could not, diminish a citizen's constitutional right to access to public records.

Sims v. State, 753 So. 2d 66, 71-72 (Fla. 2000) (Anstead, J., concurring) (emphasis

added).

The Court itself responded to the concern that the rule would

unconstitutionally invade the independent right to obtain public records under

Chapter 119 and Article I, section 24 by echoing Judge Anstead’s concurring

opinion:

We specifically address the comments of those who are concerned that the rule will unconstitutionally limit a capital postconviction defendant's right to production of public records pursuant to article I, section 24, Florida Constitution, and chapter 119, Florida Statutes (1995). We conclude that the rule does not invade those constitutional and statutory rights.

In re Amendment to Florida Rules of Criminal Procedure-Capital Postconviction

Pub. Records Prod., 683 So. 2d 475, 476 (Fla. 1996) (emphasis added).

As Howell demonstrates in his brief at pages 58-60, in several cases this

Court has upheld the right of death-sentenced inmates to obtain public records

relating to lethal injection protocols. It is not Howell’s fault, or a result of his lack

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of due diligence, that he did not seek the public records earlier because the DOC

adopted the new protocol in September 2013.

The trial court’s order rejected Howell’s new allegations and claims that

refute the factual foundation which formed the basis of the Court’s holdings in

Muhammad v. State, SC13-2105, 2013 WL 6869010 (Fla. 2013) cert. denied, 13­

8030, 2014 WL 37226 (U.S. 2014). In doing so, the trial court erroneously

presumed that the records Howell sought would not alter the outcome of the

conclusion reached in Muhammad. Unfortunately, neither the trial court nor this

Court can conclusively rest on that presumption because the sought-after records

are not part of the record on appeal. Howell’s allegations were not identical to

those raised in Muhammad and otherwise met the requirements of rule 3.852(i).

Otherwise, as applied in this particular context, rule 3.852 lacks the

procedural safeguards that would warrant the trial court’s summary dismissal of his

claim for access to these records because: i) the records did not exist at the time

Howell filed earlier claims and ii) the holding in Muhammad cannot be used to

collaterally estop Howell from advancing a sufficiently dissimilar and colorable

claim. To the extent that any tension exists between rule 3.852 and Howell’s

constitutional right to inspect public records under Article I, section 24 and his

statutory right under Chapter 119, it must yield to safeguarding his fundamental

right to obtain public records reasonably relevant to his ability to put forth a

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colorable claim that the new protocol violates other fundamental rights. Any

doubts arising about the rights of a citizen to obtain access to public records must

be resolved in favor of transparency and disclosure. Morris Pub. Group, LLC v.

Florida Dept. of Educ., 38 Fla. L. Weekly D2345 (Fla. 1st DCA 2013). See also

Johnson v. State, 904 So. 2d 400, 405 (Fla. 2005) (where doubt exists as to

disclosure of public records, trial court should review the documents in camera).

When a citizen faces the penalty of death, society benefits by a process that is

transparent. “An informed public debate is critical in determining whether

execution by lethal injection comports with ‘the evolving standards of decency

which mark the progress of a maturing society.’” California First Amendment

Coal. v. Woodford, 299 F.3d 868, 876 (9th Cir. 2002) (quoting Trop v. Dulles, 356

U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)).

CONCLUSION

This Court should stay the execution and remand to allow Howell the

opportunity to obtain public records to demonstrate that the revised lethal injection

protocol violates his Eight Amendment rights.

Respectfully submitted,

ANDREA FLYNN MOGENSEN, Esquire The Law Office of Andrea Flynn Mogensen, P.A 200 South Washington Boulevard, Suite 7 Sarasota FL 34236 Telephone: (941) 955-1066 Fax: (941) 866-7323

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Florida Bar No. 0549681 amogensen@sunshinelitigation.com (Primary) mbarfield@sunshinelitigation.com (Secondary)

Special Counsel, First Amendment Foundation

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been filed with the

Clerk of the Court via the e-Portal, which will cause a copy to be furnished by e-

mail on February 5, 2014, at 12:00 noon, to:

MICHAEL UFFERMAN Michael Ufferman Law Firm, P.A. 2022-1 Raymond Diehl Road Tallahassee, Florida 32308 (850) 386-2345/fax (850) 224-2340 ufferman@uffermanlaw.com

SONYA RUDENSTINE 204 West University Ave., Suite 5 Gainesville, Florida 32601 Email: studenstine@yahoo.com

MICHAEL TYE Email: michael.tye@aporter.com MARA V.J. SENN Email: mara.senn@aporter.com PEGGY OTUM Email: peggy.otum@aporter.com ARNOLD & PORTER LLP 555 12th St. NW Washington, D.C. 20004

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KATHLEEN HARRIS Arnold & Porter LLP Tower 42, 25 Old Broad Street London EC2N lHQ, UNITED KINGDOM Kathleen.Harris@APORTER.COM

CHARMAINE MILLSAPS Assistant Attorney General Office of the Attorney General - Capital Appeals PLO 1, The Capitol Tallahassee, Florida 32399-1050 Email: capapp@myfloridalegal.com and charmaine.millsaps@myfloridalegal.com

Eddie Evans Assistant State Attorney Leon County Courthouse, Suite 475 301 South Monroe Street Tallahassee, Florida 32399-2550

Email: evanse@leoncountyfl.go~:=7~--

Andrea Flynn Mogensen, Esq.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with Rule 9.210(a)(2), Fla. R.

App. P., and that the type size and style used throughout this brief is Times New

Roman 14-point font.

Andrea Flynn Mogensen, Esq.

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