Summary
In State ex rel. Fyffe v. Pierce (1988), 40 Ohio St.3d 8, 531 N.E.2d 673, the Supreme Court of Ohio determined that the word "may," as used in the statute and the rule, is not mandatory and permits the juvenile court to exercise its discretion in opening or closing a delinquency hearing.
Summary of this case from In re N.HOpinion
No. 88-929
Submitted September 20, 1988 —
Decided November 30, 1988.
Prohibition — Juvenile law — Public not excluded by court from hearing on transfer of jurisdiction for trial of minors as adults pursuant to Juv. R. 30(B) — Court not required to close hearing — Juv. R. 27.
IN PROHIBITION.
Relators Daniel E. Fyffe, Jr. and Bret A. McVay are juveniles who were brought before the Juvenile Division of the Court of Common Pleas of Coshocton County by means of a delinquency complaint. The state filed a motion seeking that jurisdiction be transferred so that relators could be tried as adults, triggering the hearing process prescribed by Juv. R. 30. At the hearing required by Juv. R. 30(A), respondent, a judge of the Juvenile Division of the Court of Common Pleas of Coshocton County, found probable cause to believe that relators committed the acts alleged in the complaint and that the acts would be felonies if committed by adults.
Pursuant to Juv. R. 30(B), the court continued the proceedings for full investigation, pending a second hearing to determine whether to transfer jurisdiction from the juvenile division. On April 11, 1988, relators moved to exclude the news media and the general public from the second hearing. On May 11, 1988, the motion was denied. Thereupon, relators filed this action seeking a writ of prohibition to prevent respondent from "opening the second hearing."
Kincaid, Cultice Geyer and Peter N. Cultice, for relator Fyffe.
Norman Davitt, county public defender, for relator McVay.
William M. Owens, prosecuting attorney, and Brent W. Shenk, for respondent.
Frase, Weir, Baker McCullough Co., L.P.A., Eugene R. Weir and R.Q. Baker III, urging denial for amicus curiae, The Tribune.
"In order for a writ of prohibition to issue, relators must establish: (1) that the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of such power is unauthorized by law, and (3) that the refusal of the writ will result in injury for which no other adequate remedy exists." Commercial Savings Bank v. Court of Common Pleas (1988), 35 Ohio St.3d 192, 193, 519 N.E.2d 647, 648-649.
Relators nowhere allege that they lack an adequate remedy at law. Accordingly, the writ cannot issue.
Assuming that relators had made allegations sufficient to state a claim in prohibition, respondent's denial of their motion was authorized by law. R.C. 2151.35 and Juv. R. 27 both provide: "* * * [I]n the hearing of any case, the general public may be excluded * * *." The word "may" is clearly not mandatory; therefore, the court was not required to close the hearing, but could exercise its discretion. Although relators argue that, by not closing the hearing, the court violated their constitutional rights, this contention goes to the merits of the ruling. It therefore cannot be considered in this prohibition action. State, ex rel. Celebrezze, v. Court (1979), 60 Ohio St.2d 188, 190, 14 O.O. 3d 441, 442, 398 N.E.2d 777, 779.
Moreover, relators do not lack an adequate remedy at law. If tried as adults, they can move for change of venue to alleviate any unfairness that pretrial publicity may cause. If change of venue is denied, and relators are subsequently convicted, they can appeal.
For the foregoing reasons, prohibition will not lie. We therefore deny the writ.
Writ denied.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and H. BROWN, JJ., concur.
WRIGHT, J., concurs in judgment only.