Boettger v. Loverro

JOHNSON, Judge,

concurring:

I write separately because I do not believe that the manner in which the information was obtained from the clerk of court’s office was within the legislature’s contemplation when promulgating the Act. Once the transcripts were made a part of the unsealed case file, they became, for all intents and purposes, matters of public record. Appellant could not then willfully disclose or use the information in a manner which violated the law because, in my view, that information was no longer shrouded in the secrecy provided by the Wiretap Act. Any private citizen could have viewed the wiretap transcripts in the clerk of court’s office and would be no more or less subject to criminal or civil liability than appellant herein.

The principles of statutory construction analyzed by my esteemed brother are unquestionably valid, but I see no need to evaluate a possible constitutional conflict in this case to determine the intent of the legislature. Moreover, I do not believe that a constitutional question is before us, indirectly or otherwise, because, as stated by the majority, it was not properly preserved. The majority’s erudite discussion in Part III-A is, therefore, unnecessary to our disposition of this case.

I concur in the result reached by the majority in Part III-B that an implied exemption for the publication of lawfully obtained information of legitimate public concern is included in section 5725. In my mind, the discussion begins and ends here. I would, therefore, reverse the judgment simply on the basis that the trial court, as a matter of law, should not have found a statutory violation where none had occurred.