State ex rel. Gore Newspapers Co. v. Tyson

• Decision Date: 16 May 1975
• Docket Number: No. 74--1533,74--1533
• Citation: 79 A.L.R.3d 382,313 So.2d 777
• Parties: STATE of Florida ex rel. GORE NEWSPAPERS COMPANY and Margaret Ann Croxton, Relators, v. The Honorable Robert W. TYSON, Jr., Circuit Court Judge, Respondent.
• Court: Florida District Court of Appeals

Page 777

313 So.2d 777

79 A.L.R.3d 382

STATE of Florida ex rel. GORE NEWSPAPERS COMPANY and Margaret Ann Croxton, Relators, v. The Honorable Robert W. TYSON, Jr., Circuit Court Judge, Respondent.

No. 74--1533.

District Court of Appeal of Florida, Fourth District.

May 16, 1975.

Rehearing Denied July 2, 1975.

Theodore R. Hainline, Paul R. Regensdorf and Jeffrey P. Sprowls, of Fleming, O'Bryan & Fleming, Fort Lauderdale, for relators.

Robert L. Shevin, Atty. Gen., Tallahassee, and Thomas M. Carney and Basil S. Diamond, Asst. Attys. Gen., West Palm Beach, for respondent.

Hugo L. Black, Jr., of Kelly, Black, Black & Kenny, P.A., Miami, as amicus curiae.

Cromwell A. Anderson, Miami, and Hugh Glickstein, Lauderhill, as amicus Curiae.

MAGER, Judge.

This is an original prohibition proceeding instituted by Gore Newspapers Company, a newspaper corporation, and Margaret Ann Croxton, Relators, seeking to restrain and prohibit the Honorable Robert W. Tyson, Jr., Circuit Judge of the 17th Judicial Circuit, State of Florida, from conducting a closed trial in a dissolution of marriage proceeding pending before that court.

The facts as set forth in the affidavit of Margaret Ann Croxton, relator, and the briefs of the parties herein, reflect that on November 4, 1974, respondent was in the process of conducting a dissolution proceeding in the case of Jackie Gleason v. Beverly Gleason, No. 74--11440, to be heard in chambers. The relator Croxton, a news reporter employed by relator Gore Newspapers Company, sought to attend, observe and report the particular judicial proceeding; however, she was advised that the proceeding was closed to the public and press.

It appears that at the outset of the hearing in respondent's chambers, Mrs. Gleason's attorney moved to exclude the public from the hearing and from access to the files in order to protect her privacy which motion was joined in by Mr. Gleason's attorney. Having ascertained that both parties requested the exclusion of the public from the trial and from access to the file, the court announced that the trial would be closed to the public and press and that no newspaper reporters or other members of the public would be allowed to attend and observe the proceedings.

A closed trial was thereafter conducted in chambers.

On November 5, the relator Croxton was advised by the respondent that the proceedings would resume on December 3, 1974, and on that date the trial would again be closed to the public and press. As a result of having been excluded from these proceedings, the relator Croxton and relator Gore Newspapers filed a suggestion for the issuance of a writ of prohibition. (See sec. 81.011, F.S.) On November 13, 1974, this court issued an order directing the respondent to show cause why the relief prayed for by the relators should not be granted. ¹ Permission was granted for the filing of separate amicus briefs on behalf of Jackie Gleason and Beverly Gleason.

In an effort to expedite the prohibition proceeding and to minimize the delay to the litigants in the dissolution action, the court directed that all briefs and responses be filed on short notice and accelerated the date for the hearing of the oral argument.

The precise question raised in this prohibition proceeding is one of first impression in this state and the nation: whether a trial court in the conduct of a civil (dissolution) proceeding has the authority to exclude the public and press and conduct a closed door trial upon request of the parties to the litigation.

Implicit in the consideration of this question is the necessity to recognize and maintain the delicate balance between competing rights and interests--the inherent power and interest of the court in guaranteeing to the litigants the fundamental right to a fair trial when measured against the right and interest of the public and press to have access to all judicial proceedings. These rights and interests have received extensive consideration by the courts. But, the great bulk of the litigation in this area has concerned the rights of the public, the press and the defendant in Criminal proceedings. Nevertheless the comments, discussions and observations in these cases are extremely instructive to the question posed. See, in particular, United States v. Dickinson, 5 Cir. 1972, 465 F.2d 496.

The question therefore presents tripartite considerations: the power and authority of the court; the rights and interests of the litigants in the civil dissolution proceeding; and the rights and interests of the public and the press.

The complexity of the problems presented by this question is further compounded by the additional consideration of the threshould proposition of the propriety of prohibition. In State ex rel. Gerstein v. Baker, Fla.App.1971, 243 So.2d 464, the Third District Court discussed several of the general principles pertaining to the application of the prohibition remedy:

'Prohibition is a prerogative writ by which a court having appellate and supervisory jurisdiction over an inferior court or tribunal may prevent the latter from usurping or exercising a jurisdiction with which it has not been invested by law. The writ may be employed to restrain exercise by the inferior court of jurisdiction which it does not possess, Or to restrain action which is in excess of jurisdiction possessed. Prohibition is not to be employed as a substitute for appeal or certiorari, but may be invoked, for the purposes defined, in the absence of those Or another adequate remedy.' (Emphasis added.)

Of particular importance are the underlined phrases of the above quoted statement. In this regard, the judicial action complained of must be shown to be in Excess of the court's subject matter jurisdiction in the particular case, i.e., although the trial court would have jurisdiction over the subject matter of the pending (dissolution) proceeding, nonetheless if it takes an action or enters an order characterized as being unauthorized by law, such action or order may be said to be in excess of the court's jurisdiction over the cause for which prohibition may lie. It is to be noted that utilization of prohibition is in the disjunctive, i.e., to restrain the exercise of jurisdiction which the inferior court does not possess Or to restrain action which is in excess of jurisdiction possessed. State ex rel. Gerstein v. Baker, supra. The former category is, somewhat, inflexible, i.e., either the court has jurisdiction or it does not; but the latter would certainly be dependent upon varying particular circumstances.

In reviewing cases analyzing the propriety of prohibition no mention is made regarding whether the 'excessive' act was within the general range of the court's discretion so as to characterize the act as merely being 'erroneous' and, hence, subject to some type of review other than prohibition. From the very nature of the proposition of 'exceeding jurisdiction possessed' is the recognition that in some instances the court's action may be excessive whereas in some instances it may not be. In either instance the court's action may be the result of an exercise of discretion; but it is no less susceptible to prohibition if the action is unauthorized by law. Whether a court exceeds its judicial power is a proper subject of a prohibition proceeding. Scussel v. Kelly, Fla.App.1963, 152 So.2d 767, vacated on other grounds 167 So.2d 870 (Fla.1964); see also, State ex rel. Miami Herald Publishing Co. v. Rose, Fla.App.1972, 271 So.2d 483. Any other interpretation of the availability of the writ of prohibition would result in prohibition being limited strictly to the court's jurisdiction over the subject matter. See State ex rel. McGreevy v. Dowling, Fla.App.1969, 223 So.2d 89, 93.

Since it is beyond dispute that the trial court had jurisdiction over the general subject matter, the respondent's action (in conducting a nonpublic trial) must be examined in light of whether such action was beyond the power of the court to enter under the particular circumstances.

It is generally recognized that the writ of prohibition, being an extraordinary writ, cannot be resorted to when other remedies at law are available. 25 Fla.Jur., sections 8 and 9. But the mere existence of another remedy does not in itself preclude the prohibition remedy; the test is whether the other legal remedy is plain, speedy and adequate in the circumstances of the particular case. 25 Fla.Jur., supra, sec. 9. See also Scussel v. Kelly, supra.

Under these circumstances we find that prohibition is a proper remedy.

The fact that the relators are not parties to the proceedings below would preclude them from seeking ordinary appellate review of the respondent's order. It is axiomatic that only a party to a proceeding has the standing to seek appellate review. To suggest the availability of intervention as a party in the proceeding below as an 'adequate' remedy to preclude prohibition is to unnecessarily encumber pending litigation and invite the entry of 'nonparty-parties' when the right or interest sought to be enforced is not directly involved in the subject matter of the pending proceeding.

Decisions rendered by our sister states have recognized the propriety of extraordinary remedies, such as prohibition, as a means of challenging the action of a court alleged to be acting in excess of its jurisdiction particularly where the movants are Not parties to the proceeding from which the trial action emanated. E. W. Scripps Company v. Fulton, 1955, 100 Ohio App. 157, 125 N.E.2d 896; Phoenix Newspapers, Inc. v. Superior Court, 1966, 101 Ariz. 257, 418 P.2d 594; Kirstowsky v. Superior Court, 1956, 143 Cal.App.2d 745, 300 P.2d 163. ² The Scripps case is particularly significant because of the similarity of those circumstances to the instant case. There, prohibition was sought by a newspaper corporation on behalf of its reporters and the general public to restrain the trial judge from enforcing an order...