State ex rel. English v. McCrary

• Decision Date: 04 March 1976
• Docket Number: No. BB--200,BB--200
• Court: Florida District Court of Appeals
• Parties: STATE of Florida ex rel. Carey ENGLISH, Relator, v. The Honorable Robert L. McCRARY, Jr., Circuit Judge, Respondent.

Page 257

328 So.2d 257

STATE of Florida ex rel. Carey ENGLISH, Relator, v. The Honorable Robert L. McCRARY, Jr., Circuit Judge, Respondent.

No. BB--200.

District Court of Appeal of Florida, First District.

March 4, 1976.

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

McCORD, Judge.

The relator, Carey English, has filed in this court a Suggestion for Writ of Prohibition against respondent, the Honorable Robert L. McCrary, Jr., Circuit Judge. The Suggestion alleges that relator is a reporter for the Tallahassee Democrat, a newspaper of general circulation in several north Florida counties. Relator alleges that respondent refused to permit him to attend a hearing in a case styled In Re: The Marriage of Estelle M. Morrison and Harry Morrison, Case No. 75--2582, in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida. Relator further alleges that respondent has failed to give and refuses to give good and cogent reasons for the exclusion of the press from the hearing and in so doing has acted without and in excess of any inherent power of the court to protect rights of parties and witnesses or further the administration of justice; that the mere desire of the litigants, or the desire of the trial court at the suggestion of the litigants, to conduct a private hearing is not a sufficient predicate upon which the court may exclude the public and the press completely; that Harry Morrison is the State Attorney for the Second Judicial Circuit of the State of Florida and by virtue of his being an elected public official, the public has a real and genuine interest in any litigation involving such public official. Relator further alleges that respondent refused to entertain any legal arguments as to the right of the press to attend such hearing and by so doing respondent denied relator due process under the Fourteenth Amendment to the Constitution of the United States and Article I, Section 9, of the Constitution of the State of Florida; that such was in direct derogation of the fundamental right of the public and the press to access to all judicial proceedings.

We have considered the Suggestion for Writ and Relator's brief in support of same on the initial question of whether or not the Suggestion states a prima facie case for issuance of a rule nisi in prohibition which if issued would stay the dissolution proceeding until this prohibition action can be heard and determined. We have concluded that the Suggestion does not state a prima facie case for the issuance of the extraordinary Writ of Prohibition. The Supreme Court in State v. Petteway, 121 Fla. 822, 164 So. 872 (1935), pointed out the proper function of the extraordinary writ of prohibition as follows:

'The rule is settled in this state that prohibition may be employed to restrain an excess of jurisdiction as well as to prohibit the exercise of judicial power where none exists. It may also be used to confine a court within his power when he attempts to exercise jurisdiction beyond the legitimate scope of his powers.'

If the action of the lower tribunal is an exercise of judicial power where none exists, or if the lower tribunal is attempting to exercise jurisdiction beyond the legitimate scope of his powers, the writ may be employed. Otherwise, prohibition will not lie. Thus, the initial question before us is whether or not respondent's refusal to allow the press to attend this marriage dissolution proceeding was an exercise of judicial power where none existed or was an exercise of jurisdiction beyond the legitimate scope of his powers.

The only authority cited by relator in its brief in support of its Suggestion for Writ is State ex rel. Gore Newspapers Company v. Tyson, Fla.App. (4th), 313 So.2d 777. This was an opinion by our sister court, the District Court of Appeal, Fourth District, which ruled that prohibition would lie at the behest of the press which was denied admittance by the chancellor to a dissolution of marriage proceeding in the case of Jackie Gleason v. Beverly Gleason. There, one member of the three judge panel dissented. We have carefully examined the opinion of the court in that case and the authorities cited therein and are unable to agree that prohibition will lie in such a case. In his dissenting opinion, Judge Walden referred to a ruling of this court in State ex rel. Pope v. Joanas, Fla.App. (1st), 278 So.2d 305 (1973), where this court stated as follows:

'The cases are legion which hold that prohibition will not lie to test the correctness of a trial court ruling. It is an action...