English v. McCrary

• Citation: 348 So.2d 293
• Decision Date: 06 May 1977
• Docket Number: No. 49039,49039
• Parties: 2 Media L. Rep. 1903 Carey ENGLISH, Petitioner, v. Robert L. McCRARY, Jr., Respondent.
• Court: United States State Supreme Court of Florida

Page 293

348 So.2d 293

2 Media L. Rep. 1903

Carey ENGLISH, Petitioner, v. Robert L. McCRARY, Jr., Respondent.

No. 49039.

Supreme Court of Florida.

May 6, 1977.

As Modified On Denial of Rehearing July 13, 1977.

DuBose Ausley and C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioner.

Robert L. Shevin, Atty. Gen., James D. Whisenand and Sharyn L. Smith, Asst. Attys. Gen., for amicus curiae.

No appearance for respondent.

William C. Ballard of Baynard, Lang & Ballard, St. Petersburg, for Times Pub. Co., amicus curiae.

John W. Fleming, of Fleming, O'Bryan & Fleming, Fort Lauderdale, for Gore Newspapers Co.

William G. Mateer, of Mateer, Harbert, Bechtel & Phalin, Orlando, for Sentinel Star Co.

Allan Milledge of Milledge & Hermelee, Miami, for Sunbeam Television Corp.

Dan Paul, Parker D. Thomson and Sanford L. Bohrer, of Paul & Thomson, Miami, for The Miami Herald Pub. Co. and Gannett Co., Inc.

Harold B. Wahl, of Wahl & Gabel, Jacksonville, for Florida Pub. Co.

W. S. Rodgers, Jr., of MacFarlane, Ferguson, Allison & Kelly, Tampa, for The Tribune Co., amici curiae.

Thomas T. Cobb, of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for News-Journal Corp.

KARL, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, First District, reported at 328 So.2d 257, which conflicts with State ex rel. Gore Newspapers Co. v. Tyson, 313 So.2d 777, 79 A.L.R.3d 382 (Fla. 4th DCA, 1975). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

The conflicting decisions of the District Courts of Appeal present us with the narrow question of whether prohibition lies. ¹ We conclude that it does not and that the decision for review sub judice should be affirmed.

Petitioner, Carey English, filed a petition for writ of prohibition with the District Court of Appeal wherein he alleged that he was a reporter for the Tallahassee Democrat, that the respondent Honorable Robert McCrary, Jr., refused to permit him to attend a hearing in the dissolution proceedings of Estelle and Harry Morrison, that the respondent failed to give him a good reason for exclusion of the press from the hearing, that the mere desire of litigants to conduct a private hearing is an insufficient predicate upon which the judge may exclude the public and press, that Harry Morrison is the duly elected State Attorney for the Second Judicial Circuit, that the public had a real and genuine interest in any litigation involving this public official and that not to allow the press access was in derogation of the fundamental right of the public and the press to access to all judicial proceedings.

The District Court determined that the suggestion for writ of prohibition did not state a prima facie case for issuance of the writ. The District Court, in reaching this conclusion, expressly stated:

"While the action of the chancellor in the case sub judice in denying the press admittance to the dissolution of marriage hearing may have been an abuse of the trial judge's discretion (though we do not here rule that it was or was not an abuse of discretion) the fundamental initial question is whether or not a chancellor has jurisdiction in a dissolution of marriage proceeding to exercise his discretion to determine whether or not the public and press will be permitted to attend the hearing. If in all instances it is required that such a hearing be open to the public, then the chancellor had no discretion. Otherwise, the chancellor would clearly have the power, authority, and jurisdiction to make the ruling in a particular case. Although the ruling which he makes on the subject might constitute an abuse of discretion in a particular case, the extraordinary Writ of Prohibition would not be available to determine whether or not he correctly exercised his discretion."

The District Court of Appeal, First District, correctly determined, pursuant to all established precedent, that the suggestion for writ of prohibition filed by relator failed to state a prima facie case for issuance of the extraordinary writ of prohibition. None of the requisites essential to issuance of such a writ are present in the record before us. In fact, issuance of the writ under the circumstances presented thwarts the entire concept and purpose of the writ of prohibition.

Prohibition is an extraordinary writ, a prerogative writ, extremely narrow in scope and operation, by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction.

Historically, the writ appears to have been developed in the early stages of the development of English law. Originally, the primary purpose of the writ was to safeguard the jurisdiction of the king's court against encroachments of other courts, i.e. ecclesiastical courts, during the time of conflict between church and state. Pollock and Maitland, History of English Law, 2d ed., Vol. 1, pp. 129, 251, 479. It was intended to be a preventive rather than a remedial process, as is explained in an annotation on the history of the writ of prohibition contained in 77 A.L.R. 245-247:

"In Bacon's Abridgment the subject of Prohibition is thus introduced: 'As all external jurisdiction, whether ecclesiastical or civil, is derived from the Crown, and the administration of justice is committed to a great variety of courts, hence it hath been the care of the Crown, that these courts keep within the limits and bounds of their several jurisdictions prescribed them by the laws and statutes of the realm. And for this purpose the writ of prohibition was framed; which issues out of the superior courts of common law to restrain the inferior courts, whether such courts be temporal, ecclesiastical, maritime, military, etc., upon a suggestion that the cognizance of the matter belongs not to such courts; and in case they exceed their jurisdiction, the officer who executes the sentence, and in some cases the judges that give it, are in such superior courts punishable, sometimes at the suit of the King, sometimes at the suit of the party, sometimes at the suit of both, according to the nature of the case.' And it is there concluded that 'the object of prohibitions in general is the preservation of the right of the King's Crown and courts, and the ease and quiet of the subject.' "

In Florida, the courts have consistently determined, in accord with the historical understanding and background of the writ of prohibition, that it is meant to be very narrow in scope, to be employed with great caution and utilized only in emergencies. Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction. It is preventive and not corrective in that it commands the one to whom it is directed not to do the thing which the supervisory court is informed the lower tribunal is about to do. Its purpose is to prevent the doing of something, not to compel the undoing of something already done. It cannot be used to revoke an order already entered. State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla. 1974), State ex rel. R. C. Motor Lines, Inc. v. Boyd et al., 114 So.2d 169 (Fla. 1959), State ex rel. Shailer v. Booher, 241 So.2d 720 (Fla. 4th DCA, 1970). Where proceedings sought to be prohibited have been completed and matters therein disposed of, prohibition may not be used for the sole purpose of establishing principles to govern future cases. This court explicitly stated in State ex rel. Jennings v. Frederick, 137 Fla. 773, 189 So. 1 (1939).

"It appears well settled that, 'Another distinguishing feature of the writ is that it is a preventive rather than a corrective remedy, and it issues only to prevent the commission of a future act, and not to undo an act already performed. When, therefore, the proceedings which it is sought to prohibit have already been disposed of by the court, and nothing remains to be done either by the court or by the parties, the cause having been absolutely dismissed by the inferior tribunal, prohibition will not lie, even though the case was thus disposed of after service upon the court of a rule to show cause why the writ should not issue. Nor will the suggestion that there are other suits of the same nature pending against the relator in the same court avail to procure the writ, since the court will not issue a prohibition in a case where it is not justified, for the sole purpose of establishing a principle to govern other cases.' See Sec. 766, page 710 of High's Extra-ordinary Legal Remedies. Also see 50 C.J. page 662, paragraph 18, and authorities cited."

Cf. Wetherell v. Thursby, 100 Fla. 108, 129 So. 345 (1930), wherein this Court held that, where issues had become moot by the passing of time, the proceeding in prohibition must be dismissed.

Prohibition will be invoked only in emergency cases to forestall an impending present injury where person seeking writ has no other appropriate and adequate legal remedy. Joughin v. Parks, 107 Fla. 833, 147 So. 273 (1933). However, absence of an adequate remedy by an appeal or writ of error is not, in and of itself, sufficient to authorize the writ. Crill et al. v. State Road Dept. et al., 96 Fla. 110, 117 So. 795 (1928). Furthermore, only when damage is likely to follow the inferior court's acting without authority of law or in excess of jurisdiction will the writ issue. Curtis et al. v. Albritton, 101 Fla. 853, 132 So. 677 (1931).

Prohibition lies to prevent an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction. Burkhart v. Circuit Court of the Eleventh Judicial Circuit,146 Fla. 457, 1 So.2d 872 (1941). In this state, ...