dissenting.
I respectfully dissent.
My concurrence in Berry v. Peoples Broadcasting Corp. (1988), Ind.App., 514 N.E.2d 1283, was founded upon the belief the evidentiary portion of a disciplinary hearing by the Sheriff’s Merit Board must be conducted openly and reporters permitted, subject to reasonable restriction, to use television cameras and tape recorders while the Board takes evidence in the case pending before it because the Indiana Open Door Law applies to that part of those proceedings. However, I here dissent because the majority’s opinion goes beyond the holding in Berry.
When considering cases of this nature, the Board performs a quasi-judicial function. At the conclusion of the evidence, the Board while deliberating prior to rendering a decision, in essence, functions as a jury. The legislature simply did not intend to grant the print, audio and picture media the authority to intrude upon the Board’s deliberations, given such intrusion’s potential for disruption of the deliberative process.
Clearly, in a criminal case, due process requires the accused “receive a trial by an impartial jury free from outside influences.” (Emphasis supplied). Sheppard v. Maxwell, (1966) 384 U.S. 333, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600. I believe the officers whose eases are being considered by the Board here have a similar right to due process in this proceeding, just as do defendants in criminal cases. Further, it is in the public interest to require the orderly and dispassionate processing of cases pending before its boards and agencies free of disruptive outside influences during their deliberations, prior to the rendering of decisions, as a matter of justice and fundamental fairness.
While First Amendment freedom of the press should be given
... the widest range compatible with the essential requirement of the fair and orderly administration of justice, ...
Pennekamp v. State of Florida (1946), 328 U.S. 331, 66 S.Ct. 1029, 1037, 90 L.Ed.1295 freedom of the press must not be allowed to divert a trial from the “very purpose of a court system ... to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.” Sheppard, supra, 86 S.Ct. at 1516; Cox v. Louisiana (1965), 379 U.S. 536, 85 S.Ct. 466, 13 L.Ed.2d 487.
It is a touchstone of the judicial system a jury’s right to deliberate in private is sacrosanct. While deliberating, a jury must con*757sider all the evidence before it, discuss that evidence, resolve conflicts therein, and listen to and consider the opinions of its individual members as it deliberates prior to rendering a verdict. I completely agree with the following statement:
A jury which has retired to consider its verdict, ... should not be disturbed or recalled, except for impelling reasons to prevent a miscarriage of justice,....
75 Am.Jur., Trial, § 1011. Correspondingly, governmental boards and agencies when acting as quasi-judicial bodies should have the deliberative privacy afforded juries in the judicial system to prevent disruption of that process. To argue the presence of television cameras, tape recorders, and print reporters during such deliberations is not a disrupting influence upon the legitimate participants is to deny reality.
Were this court to declare a constitutional right in the Board and the defendants before it to be present and functioning in the editing rooms and broadcasting studios of the print, audio and television media as they prepare their material for dissemination to assure accurate reporting, such right would present a potential for disruption of that process equal to the potential for disruption arising in this case. Because both situations are almost unthinkable under our form of government, I submit the legislature’s intent is clear in this regard, albeit the Act’s language on the subject is unduly muddled.
Our legislature did not intend the Open Door Act’s anti-secrecy provisions were to apply to governmental bodies performing quasi-judicial functions when they deliberate after taking evidence prior to rendering a decision in cases pending before them.
For those reasons, I respectfully dissent and would vote to reverse the judgment.