author: KARL, Justice. ENGLAND, Justice,

text:
    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. At-tys. 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 Newpapers Co. v. Tyson, 313 So.2d 777, 79 A.L.R.3d 382 (Fla. 4th DCA, 1975). We have jurisdiction pursuant to Article Y, 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. 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, circuit courts are superior courts of general jurisdiction, and nothing is intended to be outside their jurisdiction except that which clearly and specially appears so to be. Curtis et al. v. Albritton, supra. Discussing the remedy of prohibition in relation to the broad powers vested in the circuit courts, this Court, in State ex rel. B. F. Goodrich Co. et al. v. Trammell et al., 140 Fla. 500, 192 So. 175 (1939), opined:

“The circuit courts of the State of Florida are courts of general jurisdiction— similar to the Court of King’s Bench in England — clothed with most generous powers under the Constitution, which are beyond the competency of the legislature to curtail. Ex Parte Henderson, 6 Fla. 279; Lamb v. State, 91 Fla. 396, 107 So. 535. They are superior courts of general jurisdiction, subject of course to the appellate and supervisory powers vested in the Supreme Court by the Constitution, and as a general rule it might be said that nothing is outside the jurisdiction of a superior court of general jurisdiction except that which is clearly vested in other courts or tribunals, or is clearly out side of and beyond the jurisdiction vested in such circuit courts by the Constitution and the statutes enacted pursuant thereto. Chapman v. Reddick, 41 Fla. 120, 25 So. 673; Curtis v. Albritton, 101 Fla. 853, 132 So. 677.
“Circuit courts of the State of Florida have exclusive jurisdiction of all cases in equity, all cases at law, and all criminal cases not cognizable by inferior courts. Section 11, Article V, of the Constitution; State v. Sullivan, 95 Fla. 191, 116 So. 255.
“In 15 C.J. 851-853, it is aptly said:
“ ‘Every court has judicial power to hear and determine the question of its own jurisdiction, both as to parties and as to subject matter, and necessarily does so by proceeding in the cause. When at any time or in any manner it is in good faith represented to the court by a party or an amicus curiae that it has not jurisdiction, the court will examine the grounds of its jurisdiction before proceeding further. The Court may receive testimony on a preliminary question to determine its jurisdiction, and is not bound to dismiss the suit on a mere allegation of lack of jurisdiction, but may inquire into the correctness of the averment. A court cannot pass on its own existence as a court.’
“ ‘A Court having jurisdiction to decide as to its own jurisdiction in any particular case, it follows that its decision will have the same effect and conclusiveness as would its decision on any other matter within its jurisdiction; and where the jurisdiction of a court depends on a fact which it is required to ascertain, its judgment determining that such fact does or does not exist is conclusive on the question of jurisdiction, until set aside or reversed by direct proceedings. But where the question of jurisdiction is one of law, a court cannot by an erroneous decision acquire jurisdiction which it has not, or divest itself of jurisdiction which it has.’ ”

A clear distinction is drawn between assumption of jurisdiction to which the court has no legal claim and erroneous exercise of jurisdiction with which it is invested. In State ex rel. Rheinauer v. Malone, 40 Fla. 129, 23 So. 575, 576 (1898), this Court explicated:

“But it does not lie for errors or grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal or writ of error. It is a fundamental principle, and one which will be strictly enforced, that this writ is never allowed to usurp the functions of a writ or error or certiorari, and can never be employed as a process for the correction of errors of inferior tribunals. The courts will not permit a writ which proceeds upon the ground of an excess or usurpation of jurisdiction to become an instrument itself of usurpation, or be confounded with a writ of error, which proceeds upon the ground of error in the exercise of a jurisdiction which is conceded. It does not lie to prevent a subordinate court from deciding erroneously, or from enforcing an erroneous judgment, in a case in which it has a right to adjudicate. In the application of the principle, it matters not whether the court below has decided correctly or erroneously; its jurisdiction of the matter in controversy being conceded, prohibition will not lie to prevent an erroneous exercise of that jurisdiction.” (Emphasis supplied.)

Abuse of discretion by the inferior tribunal acting within its jurisdiction is not a matter to be determined by prohibition. State v. Hunt, 70 So.2d 301 (Fla. 1954), State ex rel. Jacksonville Ice & Cold Storage Co. v. Gray et al., 130 Fla. 359, 177 So. 849 (1937). If the existence of jurisdiction depends on controverted facts which the inferior court has the jurisdiction to determine, and the court errs in the exercise thereof, prohibition is not available. State ex rel. Park v. H. T. Poindexter & Sons Merchandise Co., 149 Fla. 765, 7 So.2d 452 (1941), Burkhart v. Circuit Court of Eleventh Judicial Circuit, supra, State ex rel. Schwarz v. Heffernan, 142 Fla. 137, 194 So. 313 (1940), State v. Drumright, 116 Fla. 496, 156 So. 721 (1934).

The suggestion for writ of prohibition must affirmatively show lack of jurisdiction in the lower court. Department of Public Safety v. Koonce, 147 Fla. 616, 3 So.2d 331 (1941), State v. Rowe, 104 So.2d 134 (Fla. 1st DCA, 1958).

Relating the aforegoing principles to the case at bar, we conclude that prohibition was not an available remedy under the circumstances presented. The instant case does not involve a situation where the trial court was exceeding its jurisdiction or was without jurisdiction. The most involved here is a possible abuse of discretion.

Accordingly, the decision of the District Court is approved, State ex rel. Gore Newspapers Company v. Tyson, supra, is overruled, and the writ heretofore issued is discharged.

It is so ordered.

OVERTON, C. J., ADKINS and HATCH-ETT, JJ., concur.

ENGLAND, J., dissents with an opinion.

SUNDBERG, J., dissents and concurs with ENGLAND, J.

ENGLAND, Justice,

dissenting.

I respectfully, but firmly, dissent.

In the case before us the district court denied a news reporter’s request for a writ of prohibition directed at a trial court ruling to the effect that there is neither a right of public access nor an opportunity for hearing on the right of public access, to a civil (marriage dissolution) lawsuit. In Tyson, another district court held in an identical proceeding that prohibition is available as a remedy for denial of access to a civil proceeding. I much prefer the result in Tyson to the one now adopted by a majority of my colleagues.

Persuasive arguments can be made both for and against the availability of the writ in these circumstances. In fact, there are articulate and scholarly analyses of both sides of the matter in the majority and dissenting opinions in Tyson, and in the majority opinion below. I see no reason to restate the matters so carefully weighed and differentiated in those opinions. In contrast to a majority of my colleagues, I simply prefer the policy choice which makes the writ available in this class of cases, and which I believe better suits current societal needs.

The reasoning of the court below, the dissent in Tyson, and now a majority in this Court, reflects no more than a strict, if not slavish, adherence to the historical bases for writs of prohibition. While historical development is certainly an appropriate matter for courts to consider, new dimensions attend the problems which arise with ever-increasing frequency in the areas of free press and public access to governmental processes. I believe that Florida’s constitutional .remedies should expand correlative with these needs, if for no other reason than to guarantee that

“The courts shall be open to every person for redress of any injury . . . ,”

For that reason, I have no reluctance to expand the narrow, historical notion of prohibition to meet a need not otherwise met by traditional processes of appellate review.

Even more compelling to me than my personal notion that courts should be accessible is the 1972 assertion by the citizens of Florida that the technical niceties of pleading which historically controlled access to the courts would no longer be available for that purpose. In that year the Constitution was amended to state that

“no cause shall be dismissed because an improper remedy has been sought.”

The majority here has denied a judicial forum to this reporter, and it offers no specific means of access to others in the same situation. I would not disregard the present concern of Carey English and the other news reporters who may be barred from assorted judicial proceedings by judicial whim, or the needs of the public, simply because it may be possible to work out some process to solve their problem some day.

Until today, this Court has not only acknowledged but actually applied Article V, Section 2(a) of the Constitution. In State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla.1974), the only post-1972 case cited by the majority for its historical view of prohibition, both the majority and dissent agreed that although prohibition was improper the case would be treated and resolved as if it had been denominated a petition for a writ of habeas corpus. In State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1976), a unanimous Court held on facts very similar to those before us that although prohibition was technically not available to the news media to challenge a “gag order” in criminal cases (citing the Tyson case as supportive authority), the legal problem would be considered and resolved as if a petition for writ of certiorari had been sought. Nothing of significance that I can detect distinguishes a criminal case from a civil case as regards the procedural technique for initiating a challenge by persons not a party to the litigation. Indeed, the McIntosh opinion expressly states as much, although the comment was gratuitous and non-precedential in that proceeding.

In sum, I would provide a rapid means of access to appellate courts for the problem which cropped up in this case, and I prefer to call that means of access “prohibition” rather than wait until it can be denominated by some study committee as “appeal”, “certiorari” or “review”.

My conclusion that the remedy of prohibition will lie in civil as well as criminal cases to test the exclusion of the press and the public from judicial proceedings brings me to the second issue in this case — whether on the facts known to the district court a response should have been' sought from the trial judge or, if no response was obtained, whether the writ of prohibition should have issued. The obvious answer to these questions is that a response should have been sought, and if not obtained then prohibition should have been ordered. While the majority declares its allegiance to appellate court review for cloture orders, it has offered no guidance as to how that review may be sought. I think we can provide some help.

The alleged but skeletal facts presented to the district court suggested no cogent reason to support the closing of the proceeding by the trial judge. The only justification apparently offered English for his exclusion from the proceeding was the court’s or the parties’ view that divorce is “a private matter”. There was no reason presented to the district court as to why this marriage dissolution could not be fairly resolved in public. In the absence of any reason, the proceeding should have been opened. In Miami Herald Publishing Co. v. Collazo, 329 So.2d 333 (Fla.3d DCA), cert. denied, 342 So.2d 1100 (Fla.1976), an absence of justification was found insufficient to allow a trial court to seal the settlement terms of a civil suit. I would adopt the view there expressed that neither a mere preference of the parties nor an unsupported fear of possible adverse effects on other pending litigation is sufficient reason to shroud a judicial proceeding, or any of its aspects, in secrecy. In the absence of “fair trial considerations” which would “result in any immediate threat to the administration of justice”, a trial is a public event which takes place on public property and over which the judiciary possesses no special editorial, censorial or suppression powers.

It is neither necessary nor appropriate in this case to attempt a listing of the circumstances where exclusion of the public or the press might be proper. As the district courts recognized in Tyson and Collazo, and as this Court has indicated in ilic-Intosh, occasions may arise when full or partial exclusion of the public and the press will be appropriate. Obviously, the trial judges of this state should have discretion to evaluate the peculiar circumstances of each particular case in order to deal with potential prejudice to the rights of litigants or to the authority of the court. To guarantee these judges time to reflect, and to assure that their actions are adequately reviewable, I would apply in these eases the suggestions offered by Justice Sundberg in his concurring opinion in the McIntosh case. In general these require that the press should be given fair notice and an opportunity to be heard before a trial court places any restraint on access to a court proceeding. Except in those rare situations when circumstances make it impossible (the special circumstances themselves being a reviewable question), a hearing should be conducted at a time which will permit appellate review of the court’s decision without a need to stay the underlying case. Additionally, the trial judge should explicitly state the reasons for his decision. Only by these means can litigants and the public have their respective needs fairly evaluated, and that evaluation fairly reviewed.

SUNDBERG, J., concurs.

      . The original opinion of the Court went beyond the single question for disposition to analyze the discretionary power of judicial officers to close proceedings, enter protective orders and seal files. That portion of the opinion announced that any restriction on the public’s right to know or the First Amendment right of freedom of the press would be subject to careful scrutiny by any appropriate procedure. Such orders, we said, would be invalidated if they involved any excessive or improper use of the limited power.
      Recognizing that questions of cloture may arise at any stage of any civil or criminal proceeding and under varying circumstances and that such questions involve basic constitutional rights of the parties, the public and the media, no specific method of review of cloture orders was suggested.
      We observed that a study should be undertaken in an effort to develop rules providing procedures for speedy review of all orders closing any part of the proceedings or court records.
      Pending disposition of a petition for rehearing, the petitioner and others requested and have been granted leave to present and argue a proposed rule in In Re Appellate Rules, Case No. 40,409, now pending in this Court. It is appropriate that the development of guidelines and procedural rules be undertaken by appropriate committees with the advice and recommendations of members of the public, media representatives, judicial officers and members of the Bar. The issue has been injected into In Re Appellate Rules, supra, at petitioner’s request, where it will be carefully considered. It will also be promptly considered by other appropriate study groups. There is, therefore, no further need for the obiter dictum of the original opinion.

      . It is alleged that a first request for permission to attend the dissolution hearing being conducted in the Leon County courthouse was made by the news reporter directly to Judge McCrary, and summarily denied. It is further alleged that a second request, made through counsel, was also denied on the ground that the proceeding was “a private matter”. Finally, it is alleged that the reporter’s counsel was also refused permission to present legal arguments to the trial judge in support of his request to open the proceeding. We must assume the accuracy of these allegations because the trial judge to whom prohibition was directed was not asked to file a return with the district court, and he neither appeared nor argued before us.

      . Our constitutional role in resolving conflicts in the law which arise between district courts would be far less difficult if all cases of “direct conflict” came to us with contrasting views as well reasoned and fully developed as they are on this issue in this case.

      . Prohibition is guaranteed in Article V, §§ 3(b)(4), 4(b)(3) and 5(b) of the Florida Constitution.

      . The same conclusion has been reached by the courts of other states. Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966); E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955). See also Kirstowsky v. Superior Court, 143 Cal.App.2d 745, 300 P.2d 163 (1956). My views here do not suggest that I would acquiesce in the availability of prohibition in any other type of constitutional or non-constitutional confrontation. Those matters are for another day.

      . Art. I, § 21, Fla.Const.

      . Art. V, § 2(a), Fla.Const.

      . 297 So.2d at 828 and 830.

      . It should be noted that the district court and this Court both refused to stay the Morrison divorce proceeding pending consideration of the writ of prohibition and our review of its denial. As a consequence, the dissolution proceeding was concluded in closed proceedings. Nonetheless, we entertained certiorari based on the direct conflict of decisions in order to clarify the law with respect to the questions brought to us for review. For the reasons expressed in State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1976), our analysis of the merits of the controversy is not precluded by the conclusion of the underlying divorce proceeding.

      . 329 So.2d at 338.

      . The Legislature has chosen to expressly authorize or mandate closed proceedings where public disclosure of necessary evidence would thwart legislative policy, tend to be destructive of the judicial process, or be unjust to the parties. See Sections 39.09(1)(b), 63.162 and 742.031, Fla.Stat. (1975), involving respectively juvenile proceedings, adoptions and bastardy suits.

      .See Judge Smith’s concurring opinion below, cogently expressing the judiciary’s universal disdain for the disruption of one of the most sensitive of judicial proceedings — a marriage dissolution.


source: Caselaw Access Project

author: PER CURIAM. ENGLAND, Justice,

license: Public Domain

text:
    The SCHOOL BOARD OF BROWARD COUNTY, Florida and Pacific Indemnity Insurance Company, Appellants, v. Gilbert E. SURETTE et al., and Arthur Galiardo, Jr., et al., Appellees.
    No. 50283.
    Supreme Court of Florida.
    May 12, 1977.
    Rehearing Denied July 28, 1977.

      William S. Gardella, Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellants.
    Edward A. Perse, Horton, Perse & Ginsberg, Miami, and Robert Sussman, Hialeah, for appellees.
    Robert L. Shevin, Atty. Gen., and Thomas A. Beenck, Asst. Atty. Gen., for intervenor.
   PER CURIAM.

This marks the third appearance of this cause in this Court. School Board of Broward County v. Surette, 281 So.2d 481 (Fla.1973); School Board of Broward County v. Surette, 339 So.2d 194 (Fla.1976). The occasion for its most recent visit stems from an order entered by the Circuit Court of the Seventeenth Judicial Circuit for Broward County, Florida, ruling upon a motion by the appellants to suppress and to sever. By their motion appellants urged that the appellant insurance carrier named in the third amended complaint be severed from the trial “and/or” any mention of insurance to the jury be suppressed. Appellants contended that such result is compelled by the provisos contained in Sections 234.03(4) and 455.06(2), Florida Statutes (1975). Section 234.03(4) states:

. Provided, however, no attempt shall be made in the trial of any action against a school board to suggest the existence of any insurance which covers in whole or in part any judgment or award which may be rendered in favor of the plaintiff .

Section 455.06(2) reads:

. provided, however, no attempt shall be made in the trial of any action against a political subdivision to suggest the existence of any insurance which covers the whole or in part any judgment or award which may be rendered in favor of the plaintiff .

Appellants essentially contended that our decision in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), required or at least authorized the suppression and severance sought.

In his order ruling upon the motion, the trial judge determined (i) that the decision in School Board of Broward County v. Surette, 281 So.2d 481 (Fla.1973), established the law of the case; (ii) that “the provisions of Florida Statutes 455.06(1) [sic] and 234.-03(4) are unconstitutional and hereby to be void as contrary to the Florida Constitution Article 5, Section, 2(a);” and (iii) that our decision in Carter v. Sparkman, supra, is not controlling in the instant case. As a result of the trial court’s ruling on the constitutionality of the statutes involved, notice of appeal was filed in this Court. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and review this matter by certiorari. We dispense with oral argument pursuant to Florida Appellate Rule 3.10e.

Subsequent to filing the notice of appeal, The Honorable Robert L. Shevin, as Attorney General of Florida, moved to intervene, which motion was granted. Additionally, appellees have filed their motion to quash and/or dismiss and request for attorneys’ fees to which appellants have addressed a motion to dismiss and deny. We hereby deny the motions filed by the appellees and the appellants.

Although jurisdiction vests in this Court by virtue of the trial court’s ruling upon the constitutionality of the indicated sections of the Florida Statutes, we do not deem it necessary or appropriate to reach the constitutional issue presented. This is so because the trial court was eminently correct in determining that our decision in School Board of Broward County v. Surette, 281 So.2d 481 (Fla.1973), established the law of the case in this cause which is unaffected by our decision in Carter v. Sparkman, supra. See Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976); Harwell v. Sheffield, 112 So.2d 377 (Fla.1959); 2 Pla. Jur. Appeals § 398 (1963).

Accordingly, certiorari is granted and the order of the trial court is approved.

It is so ordered.

OVERTON, C. J., and SUNDBERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice,

concurring.

The brief filed by appellants’ counsel contains this statement:

“It is quite candidly admitted by the writers of this brief that the Court is asked to recede from its holding in the case of the School Board of Broward County v. Surette, 281 So.2d 481 (Fla. 1973) . .

As counsel well knows, the cited case is this case and the trial court was bound to follow our decision, as the law of the case, in ruling on appellants’ second attempt to obtain the very severance which we had previously denied them.

The appeal now before us is either frivolous or intended to achieve delay. Both are a basis for dismissal. Florida Appellate Rule 3.9(b). I would grant appellees’ motion to quash this appeal. State Farm Mutual Auto. Ins. Co. v. Lee, 171 So.2d 899 (Fla. 1st DCA 1965).

      . In large part the fabric of appellants’ briefs here are woven from the trial court’s obvious typographical error in referring to subsection “455.06(1)” rather than subsection “455.06(2)”. Appellants were in no wise misled, however. It was their motion which prompted the ruling, and they had quite clearly sought only an invalidation of subsection 455.06(2) on the ground that we “overruled” the first Surette decision (which dealt only with subsection 455.06(2)) in Carter v. Sparkman, 335 So.2d 802 (Fla.1976). These arguments as to the unconstitutionality of subsection 455.06(1) constitute, at best, an insensitivity to counsel’s obligation to the courts. See Seaboard Air Line R. R. v. Hawes, 269 So.2d 392, 394 (Fla. 4th DCA 1972).


author: HATCHETT, Justice.

text:
    Carolyn STERN and Allstate Insurance Company, Petitioners, v. Richard MILLER, and Kathryn Miller, etc., et al., Respondents.
    No. 50182.
    Supreme Court of Florida.
    June 9, 1977.
    Rehearing Denied July 29, 1977.

      Samuel Tyler Hill, Hinckley & Shores, Fort Lauderdale, for petitioners.
    Gilbert A. Haddad and Peter A. Miller, Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for respondents.
    James F. Page, Jr., Page & White, Orlando, for James and Cecilia Algood, amicus curiae.
    Robert Orseck, Podhurst, Orseck & Parks, Miami, for Academy of Florida Trial Lawyers, amicus curiae.
   HATCHETT, Justice.

This is an action for wrongful death brought under Florida’s Wrongful Death Act [Section 768.19, Florida Statutes (1973)].

Respondents, Mr. and Mrs. Miller, were involved in an automobile accident allegedly caused by petitioners’ negligence. At the time of the accident, Mrs. Miller was seven months pregnant. Her child was subsequently stillborn. It is her contention that at the time of the accident the unborn child was viable and would have survived but for the accident. The Millers brought an action for wrongful death pursuant to Section 768.19, Florida Statutes (1973), which reads:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the persons injured, although death was caused under circumstances constituting a felony.

The trial court ruled that a viable fetus is not a “person” within the meaning of Section 768.19 and dismissed respondents’ complaint for failure to state a cause of action. The Fourth District Court of Appeal reversed, holding that a viable, unborn child is a person for purposes of the Wrongful Death Statute, notwithstanding subsequent stillbirth. Miller et al. v. Highlands Insurance Company, et al., 336 So.2d 636 (Fla. 4th DCA 1976). The District Court then certified its decision to this court to decide questions of great public interest:

1. Whether an unborn, viable child killed as a direct and'proximate result of another’s negligence, is a “person” within the intent of Section 768.19, Florida Statutes (1973)?
2. If so, what are the types of damages recoverable for the wrongful death of a viable, unborn child?

We have jurisdiction.

An action for wrongful death is a creature of statute, unknown to the common law. If the respondents have a cause of action, it must be founded on Section 768.-19, Florida Statutes. The question we must decide is whether a seven-month-old, viable fetus, fatally injured by another’s negligence, was intended by the legislature to be included in the term “persons” for purposes of the Wrongful Death Act, notwithstanding subsequent stillbirth.

We address this question for the first time. In Stokes v. Liberty Mutual Insurance Company, 213 So.2d 695 (Fla.1968), we were called upon to determine whether a stillborn fetus, prenatally injured by another’s negligence, was a “minor child” under Florida’s former Wrongful Death of Minors Act, Section 768.03, Florida Statutes (now repealed). Based upon the peculiar language of that statute, we held that a stillborn child was not a “minor child.” But, our decision in that case is of little help in resolving the present issue for, as we carefully pointed out in Stokes:

[T]he Stokes do not claim under Fla.Stat. § 768.01, F.S.A., our general “death by wrongful act” statute. Conceivably this would be possible if they could: (1) establish a stillborn fetus as “any person” under the statute; and (2) have someone appointed administrator of this so-called “person” so as to be able to bring the action in the order of priority fixed by Fla.Stat. § 768.02, F.S.A. . . .
We are not here called upon to determine whether the stillborn fetus is a “person” . . . under the last two cited sections. . . . (At 697-8.)

Moreover, the parties in that case specifically stipulated that viability was not an issue.

We do not, however, write on a clean slate. In Davis v. Simpson, 313 So.2d 796 (Fla. 1st DCA 1975), the First District Court of Appeal specifically ruled that an unborn viable fetus is not a “person” for purposes of the new Wrongful Death Statute.

The weight of authority is contra. Tort law concerning prenatal injuries has undergone rapid development in recent years. Two separate causes of action have emerged, one in the child for prenatal injuries and another in the child’s personal representative for wrongful death. Today if a child survives, all jurisdictions permit him to maintain an action for personal injuries received while a fetus. The courts are split where, as a result of the injuries he received, the child is subsequently stillborn. A majority of the states having considered the issue allow a cause of action. Only eleven states still cling to the common law and require live birth. The reasons for recovery are compelling: A viable fetus is a human being, capable of independent existence outside the womb; a human life is therefore destroyed when a viable fetus is killed; it is wholly irrational to allow liability to depend on whether death from fatal injuries occurs just before or just after birth; it is absurd to allow recovery for prenatal injuries unless they are so severe as to cause death; such a situation favors the wrongdoer who causes death over the one who merely causes injuries, and so enables the tortfeasor to foreclose his own liability. [See Annot., 15 A.L.R.3d 992 (1967).]

Legal writers speak in one accord on the subject and urge recovery for a viable fetus. Dean Prosser states:

All writers who have discussed the problem have joined in condemning the old rule, and maintaining that an unborn child in the path of an automobile is as much a person in the street as the mother, and in urging that recovery should be allowed upon proper proof. Torts (4th Ed. Section 56, “Prenatal Injuries,” p. 354).

Our legislature recognizes the legal personality of an unborn child in certain situations. Section 782.09, Florida Statutes (1975), provides for criminal penalties for the willful killing of an unborn child by any injury to the mother of that child. Section 458.22, Florida Statutes (1975), provides that an abortion may not be performed on any human being in the last trimester of pregnancy unless certain definite and specific requirements are met.

When the legislature enacted the new Florida Wrongful Death Act, it repealed the Wrongful Death of Minors Act, the old Wrongful Death Act, and the Survival Act, and created one general action for the wrongful death of any “person.” In McKibben v. Mallory, 293 So.2d 48 (Fla.1974), we stated:

In summary, our view is that when the new Wrongful Death Act approved by the 1972 Legislature effective July 1, 1972, became effective, it provided a new and improved method of obtaining damages for the tortious destruction of human life.

Respondents submit that only by holding that a viable fetus is a “person” may the commendable objectives of providing “new and improved methods” be reached. They contend that only by allowing recovery for the death of the infant Miller can this court “correct the harsh results and inequities which oftentimes were wrought by the old act;" and, only by allowing recovery, can this court promote the legislature’s intention of consolidating the Wrongful Death Statutes of Florida into one cohesive scheme and effectuate “the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer"; all of these reasons are the stated purposes of the legislature for enacting the present statute. See Section 768.17, Florida Statutes.

As compelling as these arguments may be, however, we are not at liberty to decide what is wise, appropriate, or necessary in terms of legislation. Only the legislature is so empowered. We are confined to a determination of the legislature’s intent.

The common law as adopted by Florida did not provide a remedy for the tor-tious killing of a human being, adult, or child. The universally accepted rule of law until 1963 was to the effect that no recovery in damages could be had for injuries suffered by an unborn child. In Stokes v. Liberty Mutual Insurance Co., supra at 770, decided by this court in 1971, we stated:

In view of the peculiar language of § 768.03, allowing recovery for the wrongful death of a “minor child”, we hold that a stillborn fetus is not within the statutory classification. Conversely, we hold that a right of action for wrongful death can arise only after the live birth and subsequent death of the child. (Emphasis added).

Admittedly the Stokes case was concerned with interpreting for statutory purposes the words “minor child,” rather than the word “person.” Admittedly Stokes came to this court on a stipulation which held that the question of whether the child was viable was unimportant to the issue. But the important point is that this case spoke to members of the legislature and to the legal community as standing for the proposition that a stillborn child was not a person entitled to bring an action for prenatal injuries or wrongful death resulting therefrom.

With Stokes on the books in 1972, when the present Wrongful Death Statute was enacted, the legislature had the opportunity to further define the meaning of the term “person” and chose not to do so. Although it amended the statute in several respects, that portion setting forth for whose death the action could be brought remained almost identical to the old statute. The prior act provided, in part:

768.01 RIGHT OF ACTION FOR DEATH
(1) Whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals . , . and the act, negligence, carelessness or default is such as would, if the death had not ensued have entitled the party injured thereby to maintain an action . . . and to recover damages in respect thereof, then and in every such case the person or persons who . . . would have been liable in damages if death had not ensued shall be liable to an action for damages . . . notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. (Emphasis added).

Since the legislature did not materially change the language of the prior section, it must be presumed that the legislature intended to carry forward into the new section the terms “person” and “minor child” as previously construed.

The legislature is presumed to know the existing law when it enacts a statute. And it is presumed that the legislature was acquainted with the judicial construction of former laws on the subject concerning which some statute is enacted. It follows that where a provision has received a definite judicial construction, the subsequent re-enactment of that provision by the legislature may be held to amount to legislative approval of the judicial construction. 30 Fla.Jur., “Effect of Action or Inaction by Legislators as to Judicially Construed Statute,” § 110. (footnotes omitted.)

Other factors also negate the idea that the legislature intended to include a stillborn child within the term “person” as used in the statute. The present Wrongful Death Act was combined with the old Wrongful Death and Wrongful Death of a Minor Child statutes and now provides in relation to damages as follows:

768.21 DAMAGES
All potential beneficiaries of a recovery for a wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(1) Each survivor may recover the value of lost support and services from the date of the decedent’s injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children may be considered. (Emphasis added).
# * * * * *
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. (Emphasis added).

The mere reading of the section regarding damages clearly indicates, on the basis of logic, that the legislature did not intend to create a cause of action for a stillborn child. We recognize that the new Wrongful Death Act is remedial in nature and is to be construed liberally. However, we cannot construe the statutory provisions so “liberally” as to reach a result contrary to the clear intent of the legislature. The act must be construed to be consistent with the objectives sought to be accomplished. Klepper v. Breslin, 83 So.2d 587 (Fla.1955). This Court is without authority to do by statutory construction that which the legislature has not intended.

The first certified question is answered in the negative, making it unnecessary to answer the second question.

Accordingly, the opinion of the Fourth District Court of Appeal is quashed and the matter remanded for action consistent with this opinion.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and KARL, JJ., concur.

      . Article V, Section 3(b)(3), Florida Constitution, and Florida Appellate Rules, Rule 4.5c(6).

      . Gordon, The Unborn Plaintiff, 63 Mich.L.Rev. 579 (1965).
      Note, The Case of the Prenatal Injury, 15 U.Fla.L.Rev. 527 (1963).
      Comment, The Conditional Liability Rule — A Viable Alternative for the Wrongful Death of a Stillborn Child, XXVIII U.Fla.L.Rev. 187 (1975).
      Comment, Wrongful Death and the Stillborn Fetus — A Current Analysis, 7 Houst.L.Rev. 449 (1970).

      . Prosser, Handbook of the Law of Torts, Section 55 at 336 (4th Ed. 1971).

      . Alabama—Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974);

        Alaska—Mace v. Jung, 210 F.Supp. 706 (D.Alaska 1962);

        Connecticut—Gorke v. Le Clerc, 23 Conn.Sup. 256, 181 A.2d 448 (1962);

        District of Columbia—Simmons v. Howard University, 323 F.Supp. 529 (D.D.C.1971);

        Delaware—Worgan v. Greggo & Ferrara, Inc., 11 Terry 258, 50 Del. 258, 128 A.2d 557 (1956);

        Georgia—Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955);

        Illinois—Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973); Pleasant v. Certified Growers of Ill., Inc., 39 Ill.App.3d 83, 350 N.E.2d 65 (1976);

        Indiana—Britt v. Sears, 150 Ind.App. 487, 277 N.E.2d 20 (1971);

        Kansas—Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962);

        Kentucky—Mitchell v. Couch, 285 S.W.2d 901 (Ky.1955); Orange v. State Farm Mutual Auto Ins. Co., 443 S.W.2d 650 (Ky.App.1969); Rice v. Rizk, 453 S.W.2d 732 (Ky.App.1970);

        Louisiana—Cooper v. Blanck, 39 So.2d 352 (1923, La.App.); Valence v. Louisiana Power & Light Co., 50 So.2d 847 (1951, La.App.);

        Massachusetts—Mone v. Greyhound Lines, Inc., 331 N.E.2d 916 (Mass.1975);

        Maryland—State Use of Odham v. Sherman, 234 Md. 179, 198 A.2d 71 (1964);

        Michigan—O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 (1971);

        Minnesota—Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838, 10 A.L.R.2d 634 (1949); Pehrson v. Kistner, 301 Minn. 299, 222 N.W.2d 334 (1974);

        Mississippi—Rainey v. Horn, 221 Miss. 269, 72 So.2d 434 (1954);

        Nevada—White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969);

        New Hampshire—Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957);

        Oklahoma—Evans v. Olson, 550 P.2d 924 (Okl.1976);

        Ohio—Stidam v. Ashmore, 109 Ohio App. 431, 11 Ohio Ops.2d 383, 167 N.E.2d 106 (1959);

        Oregon—Libbee v. Permanente Clinic, 268 Or. 258, 518 P.2d 636 (1974), rehearing denied, 520 P.2d 361 (Or.1974);

        Rhode Island—Presley v. Neport Hosp., 365 A.2d 748 (R.I., 1976);

        South Carolina—Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Todd v. Sandidge Constr. Co., 341 F.2d 75 (1964, CA 4 S.C.);

        Washington—Moen v. Hanson, 85 Wash.2d 597, 537 P.2d 266 (1975);

        West Virginia—Balwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428 (1971); Panagopoulous v. Martin, 295 F.Supp. 220 (S.D.W.Va. 1969);

        Wisconsin—Kwaterski v. State Farm Mut. Auto. Ins. Co., 34 Wis.2d 14, 148 N.W.2d 107 (1967).

      . California—Norman v. Murphy (1954) 124 Cal.App.2d 95, 268 P.2d 178;

        Nebraska—Drabbels v. Skelly Oil Co. (1951) 155 Neb. 17, 50 N.W.2d 229;

        New Jersey—Graf v. Taggert (1964) 43 N.J. 303, 204 A.2d 140;

        New York—Re Roberts’ Estate (1936) 158 Misc. 698, 286 N.Y.S. 476; Re Estate of Logan (1956) 4 Misc.2d 283, 156 N.Y.S.2d 49, affd. 2 A.D.2d 842, 156 N.Y.S.2d 152, affd. 3 N.Y.2d 800, 166 N.Y.S.2d 3, 144 N.E.2d 644; Re Bradley’s Estate (1966) 50 Misc.2d 72, 269 N.Y.S.2d 657; Endresz v. Friedberg (1966) 52 Misc.2d 693, 276 N.Y.S.2d 469;

        North Carolina—Gay v. Thompson (1966) 266 N.C. 394, 146 S.E.2d 425, 15 A.L.R.3d 983;

        Pennsylvania—Carroll v. Skloff (1964) 415 Pa. 47, 202 A.2d 9; Marko v. Philadelphia Transp. Co. (1966) 420 Pa. 124, 216 A.2d 502;

        Tennessee—Hogan v. McDaniel (1958) 204 Term. 235, 319 S.W.2d 221; Durrett v. Owens (1963) 212 Tenn. 614, 371 S.W.2d 433;

        Missouri—State v. Sanders, Mo., 538 S.W.2d 336 (1976);

        Arizona—Kilmer v. Hicks, 22 Ariz.App. 552, 529 P.2d 706 (1974);

        Virginia—Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969);

        Iowa—McKillip v. Zimmerman, Iowa, 191 N.W.2d 706 (1971).

      . Section 768.03, Florida Statutes.

      . Section 768.01, Florida Statutes.

      . Section 45.11, Florida Statutes (1965, as amended), Section 46.021, Florida Statutes (1971).


author: ENGLAND, Justice.

text:
    Reubin O’D. ASKEW, Governor of the State of Florida, et al., Petitioners, v. CITY OF OCALA, a Municipal Corporation, of the State of Florida, et al., Respondents.
    No. 50221.
    Supreme Court of Florida.
    June 9, 1977.
    Rehearing Denied July 29, 1977.

      Robert L. Shevin, Atty. Gen., and Sharyn L. Smith and Patricia R. Gleason, Asst. Attys. Gen., for petitioners.
    Seymour Rowland, Jr., and John P. McKeever and Bruce R. Kaster, Pattillo, MacKay & McKeever, Ocala, for respondents.
    George F. Knox, Jr., City Atty. and Arturo Alvarez and Eugene M. Steinfeld, Asst. City Attys., for City of Miami, Florida, ami-cus curiae.
    Parker D. Thomson and Franklin G. Burt, Paul & Thomson, Miami, for The Miami Herald Pub. Co. and The Ocala Star-Banner Corp., amicus curiae.
    Ronald A. Harbert, Mateer, Harbert, Bechtel & Phalin, Orlando, for Sentinel Star Co. and Brian Howland, amicus curiae.
    Joseph P. Averill, Miami, for Miami Daily News, Inc., amicus curiae.
   ENGLAND, Justice.

This case was brought to us by petition for writ of certiorari directed to the First District Court of Appeal, asking that we reverse the decision of that court, reported at 336 So.2d 189, as being in direct conflict with this Court’s decisions in Bryant v. Gray, 70 So.2d 581 (Fla.1954), and Ervin v. City of North Miami Beach, 66 So.2d 235 (Fla.1958). We have jurisdiction to review the district court’s decision.

Respondents filed an amended complaint seeking a declaratory judgment concerning the effect on their processes of the so-called “government in the sunshine" law, Section 286.011, Florida Statutes (1976). They allege that the Ocala City Council met privately with its attorney on one occasion in 1974 to discuss pending litigation in which officials of Ocala were party defendants. The local state attorney, one of the petitioners here, advised the city council in reliance on an opinion of the Attorney General that it was unlawful for the council to meet in private with its attorney for the purpose of transacting public business. He concluded that no action would be taken as to any past act of council members, but he warned that future meetings of the council and its attorney in private would result in his charging a violation of the statute. The Marion County School Board joined in the complaint alleging that it was a party to pending litigation, and that its attorney desired to consult with the board in private. Together the several respondents challenge the Attorney General’s advisory opinion, seeking judicial authority to conduct future meetings with their attorneys in private.

Despite the interest this case has engendered because it touches on the “government in the sunshine” law, the opinion brought to us for review deals only with an interpretation of the declaratory relief statute. The district court held that the trial court had improperly dismissed the amended complaint for failure to state a cause of action, in that the amended complaint contains all of the essential elements for declaratory relief. It is this conclusion alone which is now before us.

In our view the amended complaint in this case does not present to the circuit court a justiciable controversy under the declaratory relief statute. In the Ervin case a city similarly sought to challenge an attorney general’s opinion regarding the city’s power to set speed limits on state and federal highways. We there held that the courts have no power to entertain a declaratory judgment action which involves no present controversy as to the violation of the statute, and where the judgment sought will not constitute a binding adjudication of the rights of the parties. In the Bryant case we again held that the absence of a present controversy is fatal to a declaratory action seeking to adjudicate possible violations of a law.

As in Ervin and Bryant, there exists between respondents and the named petitioners no present dispute, only a desire by these public officials to meet in the future privately with their attorneys and to ward off possible consequences. It seems to us that respondents really seek judicial advice which is different from that advanced by the Attorney General and the state attorney, or an injunctive restraint on the prosecuto-rial discretion of the state attorney. Neither is available under the guise of declaratory relief, and we hold that the complaint fails to state a cause of action.

The decision of the district court is quashed and the case is remanded with instructions to affirm the action of the trial court in dismissing respondents’ amended complaint.

OVERTON, C. J., and SUNDBERG, HATCHETT and KARL, JJ., concur.

ADKINS and BOYD, JJ., dissent.

      . Art. V, § 3(b)(3), Fla.Const.

      . Att’y Gen.Op. 073-56.

      . In addition to the arguments from petitioners and respondents, we received the views of the Sentinel Star Company, Brian Howland, the City of Miami, the Miami Daily News, Inc., the Miami Herald Publishing Company and the Ocala Star-Banner Corporation, all as amici curiae, as to the scope of Section 286.011.

      . Chap. 86, Fla.Stat. (1975).

      . In fact, none of the petitioners but state attorney Oldham has the initial or direct power to enforce violations of the sunshine law.

      . In May v. Holley, 59 So.2d 636, 639 (Fla.1952), the elements essential to a complaint for declaratory relief are set out with some precision. Absent from respondents’ amended complaint in this case are the May requirements of a “bona fide, actual, present practical need for the declaration”, a “present, ascertained or ascertainable state of facts”, and a need for relief which is “not merely the giving of legal advice.”

      .Judge D. C. Smith reached the identical conclusion in a similar suit brought in the 19th Judicial Circuit in and for Indian River County. Indian River County School Board v. Stone, Case No. 76-1003, Order filed March 8, 1977. Pending in the 11th Judicial Circuit is a suit by the local state attorney against the Miami City Commission and its attorney, which seeks a declaratory judgment as to the application of the public meetings law to those persons. State ex rel. Gerstein v. Ferre, Case No. 77-4534. Obviously we express no view concerning that litigation.


author: BOYD, Justice.

text:
    STATE of Florida ex rel. Christopher N. GIRARD, Relator, v. Joseph P. McNULTY et al., Respondents.
    No. 50574.
    Supreme Court of Florida.
    June 9, 1977.
    Rehearing Denied July 29, 1977.
    Philip J. Padovano, of Ruiz, Padovano & Schrader, St. Petersburg, for relator.
    Robert L. Shevin, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., for respondents.
   BOYD, Justice.

Relator Christopher Girard filed a Suggestion for Writ of Prohibition asking this Court to prohibit the District Court of Appeal, Second District, from exercising jurisdiction in the case of State v. Stewart, et al., Case No. 76-140. We issued a Rule Nisi in Prohibition commanding the respondents to show cause why the writ should not issue. The respondents’ brief in opposition to the suggestion has been received,

On August 14,1975, Girard, Wayne Stewart and John Tudor were arrested and charged by information in the Circuit Court, Sixth Judicial Circuit, in and for Pinellas County, with sale of marijuana. Girard moved to dismiss the information for its failure to allege grounds necessary to charge a felony or alternatively to transfer the cause to county court which has jurisdiction over misdemeanors. On January 19, 1976, the Motion to Dismiss was granted by order of the circuit court. It is not clear from the conformed copy of the record filed in this Court whether the cause was transferred to county court but, in any event, the information filed in circuit court was dismissed.

On January 23, 1976, the State filed its Notice of Appeal in the Second District Court of Appeal for review of the dismissal order. On the same day, on the State’s motion, the circuit court ordered that the running of the Speedy Trial time, under Rule 3.191, Fla.R.Crim.P., be extended for a time as may be reasonably necessary for the State to prosecute its appeal and reset the case for trial. Girard then moved that the circuit court vacate the “extension” order for failure of the State to serve him notice of the hearing on it. The court, ruled that the dismissal of the information created an exceptional circumstance which permitted the court, by Rule 3.191(d)(e), Fla.R. Crim.P., to extend the Speedy Trial Rule time on an ex parte motion. Accordingly, the Motion to Vacate was denied. Girard then moved to dismiss the appeal before the district court on the ground that it is moot. The motion was denied and this suggestion for prohibition followed.

If the time under the Rule was not validly extended, then it has expired and Girard, upon proper motion, and finding of availability for trial, must be forever discharged from the crime. Rule 3.191(a)(1), Fla.R.Crim.P. Discharge moots the State’s appeal so that the district court has lost jurisdiction and should be prohibited from' proceeding on it.

Girard contends that the time was not validly extended because dismissal of an information is not one of the “exceptional circumstances” (enumerated in subpara-graph (f) of the Speedy Trial Rule) which permits the time to be extended on an ex parte motion. The contention fails. “Exceptional circumstances” are not limited to those enumerated. The definition provided by subparagraph (f) of the Rule is much broader:

“Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order of the Court.”

The information against Girard charges that on August 14,1975, he'“did unlawfully sell a certain controlled substance, to-wit: marijuana . . . contrary to Chapter 893.13, Florida Statutes. . . .” The trial court was correct in ruling that an extension order was required as a matter of justice to the State to permit it to litigate before the district court whether such an information charges more than misdemean- or delivery of cannabis:

“If the first offense is the ... delivery without consideration of not more than five grams of cannabis-that person shall be guilty of a misdemeanor. . . ” Section 893.13(f), Florida Statutes, (emphasis supplied)

The extension order is valid despite its ex parte nature, the appeal is not moot and the district court may proceed on it. The Rule Nisi in Prohibition is discharged.

It is so ordered.

OVERTON, C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . 180 days having passed since Girard was taken into custody August 14, 1975 (the day of his arrest).

      . Prohibition is a proper remedy to prevent a lower court from proceeding on a cause over which it does not have jurisdiction.