State ex rel. Dispatch Printing Co. v. Louden

Cook, J.,

concurring in part and dissenting in part. I agree with the majority’s decision, on the authority of Shumate and Burech, to sua sponte convert a portion of relator’s cause of action into a request for a writ of mandamus and to grant that relief in order to compel production of the unredacted transcript. See State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 591 N.E.2d 1194; State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d 153. For the following reasons, however, I respectfully disagree with the majority’s decision to grant the Dispatch’s requested writ of prohibition.

As the majority notes, the Dispatch seeks a writ of prohibition, in part, to vacate respondent’s closure of the March 17 detention hearing. But the Dispatch did not file its action in prohibition until four days after the detention hearing occurred, and one day after Judge Louden journalized an entry reflecting his prior denial of the Dispatch’s prehearing request for access. Because the relator in an action for prohibition must show that the court or officer against whom the writ is sought is about to exercise power unauthorized by law, State ex rel. Koren v. Grogan (1994), 68 Ohio St.3d 590, 592, 629 N.E.2d 446, 448, and because the action sought to be prohibited here had already occurred by the time the Dispatch filed its complaint, the Dispatch’s delay in filing rendered this portion of its cause of action moot.

The majority disagrees, relying on this court’s decision in State ex rel. Rogers v. McGee Brown (1997), 80 Ohio St.3d 408, 410, 686 N.E.2d 1126, 1127-1128. In Rogers, I joined this court in concluding that the court of appeals had incorrectly applied the mootness doctrine to deny a writ of prohibition. But in Rogers, although the trial court had already indicated at a hearing how it would later rule on the relator’s argument by the time the relator sought to prohibit the action, the relator filed his complaint in prohibition before the court journalized its judgment entry the following month. That is not the case here.

In addition to this factual distinction, our Rogers opinion included a legal justification to reject the mootness doctrine that does not apply here. In Rogers, we deemed the mootness doctrine inapplicable because “ ‘where an inferior court *69patently and unambiguously lacks jurisdiction over the cause, prohibition will lie both to prevent the future unauthorized exercise of jurisdiction and to correct the results of previous jurisdictionally unauthorized actions.’ ” (Emphasis sic.) Id. at 410, 686 N.E.2d at 1127, quoting State ex rel. Litty v. Leskovyansky (1996), 77 Ohio St.3d 97, 98, 671 N.E.2d 236, 238. Here, in contrast to the situation we confronted in Rogers, respondent’s jurisdictional basis to proceed with DiGian’s detention hearing is not at issue. Accordingly, I am not persuaded that Rogers applies.

The majority also notes that “an exception to the mootness doctrine arises when the claims raised are capable of repetition, yet evading review.” But as the United States Supreme Court has noted, “ ‘the mootness exception for disputes capable of repetition yet evading review * * * will not revive a dispute which became moot before the action commenced.’ ” Steel Co. v. Citizens for a Better Environment (1998), 523 U.S. 83, 109, 118 S.Ct. 1003, 1020, 140 L.Ed.2d 210, 237, quoting Renne v. Geary (1991), 501 U.S. 312, 320, 111 S.Ct. 2331, 2338, 115 L.Ed.2d 288, 301.

The Dispatch also seeks a writ of prohibition to ensure that, in future cases, respondent will adhere to this court’s recent precedent by conducting an evidentiary hearing before closure. See State ex rel. Plain Dealer Publishing Co. v. Geauga Cty. Court of Common Pleas, Juv. Div. (2000), 90 Ohio St.3d 79, 734 N.E.2d 1214. But the majority’s decision to prohibit the closure of “any future juvenile delinquency proceedings” to the press and public absent a Plain Dealer hearing amounts to a grant of injunctive relief. As this court has previously noted, we do not have original jurisdiction in injunction, and “[e]ven where a party is engaged in a vexatious abuse of judicial process, this court will only prohibit a court from proceeding where there is a case pending before that particular court.” (Emphasis added.) Commercial Sav. Bank v. Wyandot Cty. Court of Common Pleas (1988), 35 Ohio St.3d 192, 194, 519 N.E.2d 647, 649. Here, the juvenile court has apparently remanded DiGian to the custody of the Department of Youth Services until the age of twenty-one. Accordingly, there are no further proceedings regarding DiGian currently pending before respondent’s court, and we should not entertain what amounts to a request for injunctive relief to compel certain behavior by the court in future, unrelated proceedings.

For the foregoing reasons, though I agree with the majority that the Dispatch is entitled to an unredacted transcript of the hearing that it was unlawfully barred from attending, I respectfully dissent from the majority’s decision to grant a writ of prohibition in this case.

Lundberg Stratton, J., concurs in the foregoing opinion. Zeiger & Carpenter, John W. Zeiger and Marion H. Little, Jr., for relator. W. Duncan Whitney, Delaware County Prosecuting Attorney, Hugh A. Green-tree and David A. Hejmanowski, Assistant Prosecuting Attorneys, for respondent. Baker & Hostetler, L.L.P., Kyle B. Fleming and Jeffrey T. Williams, for amicus curiae, Ohio Coalition for Open Government.