Grand Forks Herald v. District Court Ex Rel. Grand Forks County

appel- acts perform appellant’s view fail-

late rules. In the motion to any response to

ure to make obtain a properly failure to

dismiss and parties we conclude dis-

substitution of appeal is warranted.

missal of the opinion the with this mo-

In accordance granted. appeal to dismiss WALLE, PEDERSON and

VANDE JJ.,

PAULSON, concur. Justice, specially.

SAND, concurring granting the motion dismiss

I concur in appeal. with agree any impli- I do not created or left statement

cations

“nor renewed his motion to substi- has he with this parties

tute court” had he motion or made new

renewed his motion might

the results have been different.

my N.D.R.App.P., opinion, Rule does not

contemplate a motion for substitution of

parties this court under facts and

circumstances of this case. briefs, filing

As the appellant

relied the brief earlier filed on the merits, but this court never reached the

merits in either this case or earlier case. brief, however,

No on the motion filed

to dismiss. HERALD,

The GRAND FORKS corporation, Beverly ‍​​​‌​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‍Kees, Editor, Petitioners, Executive

The DISTRICT COURT In and For COUNTY, GRAND FORKS the Honora- Bakken,

ble A. C. Leng, Lillian Re- spondents.

Civ. No. 10242.

Supreme Court of North Dakota.

Aug. WALLE,

VANDE Justice. (hereinafter Grand Forks Herald “Herald”) requested this court to exercise original jurisdiction supervi- and issue a sory writ directing the judge of the District Court for Grand Forks County to vacate its compelling order the Herald to respond to a subpoena duces tecum by supplying photo- graphs of an automobile-motorcycle acci- dent in the city streets of the Grand Forks. deny the writ. Shortly after the photographer accident a from the Herald took one or more graphs of the accident scene. One of the was by the Herald. As a Lian, result of the accident John operator of the motorcycle, filed suit against Leng, operator Lillian of the Helga Grunenwald, automobile. passen- ger on the Lian motorcycle, also filed suit against Leng. regard With to the latter Leng suit filed third-party complaint against Lian. attempted to obtain from the Herald all the scene of the accident in the Herald files. The Herald customarily and regularly of- public, $25, fers to the at a cost of a print of a photograph that it has published. The Herald does not make unpublished photo- graphs anyone available to any price. at Counsel for obtained subpoena duc- Stennes, es tecum which required John photographer Herald, chief appear before the District bring Court and to with him all photographs or negatives of accident the Herald files. After cer- procedural tain maneuvering the Herald quash subpoena. filed a motion to A hearing1 quash the motion on the sub- Kuchera, Kuchera, Thomas John Ste- poena was held before the District Court on nеhjem Wills, Forks, & petition- Grand for 10, 1982, June and an order requiring the ers. produce Herald to Leng’s for counsel all

Patrick Morley, Morley & taken of the O’Grady, accident and sur- Forks, Morley, roundings Grand respondents. by any for Herald photographer was Although discovery protected by 31-01-06.2, N.D.C.C., the manner in sought is raised as an should be aware that if the from whom Herald, appears parties sought privilege, issue the information is the statute hearing claims the agreed hearing requires at the the District Court after a proceed judge that the compel discovery. could as a motion to before a district and the district judge In view of we do this fact has found that the failure to disclose the procedural miscarriage not believe a issue was reserved for evidence will result in a However, parties seeking our review. informa- judgment petition provides 1982. The an adequate issued on June remedy. Sales, request- supervisory supra; Spence, writ followed. After Suburban supra. oral parties and after ing briefs from appears There to be little doubt that deci- matter is before us for argument the order a discovery proceeding is sion. interlocutory, order, is not a final and is not peti considering Before the merits Marmon, appealable. supra; Northwest tion, or not we we must determine whether Airlines, State, Inc. v. Through Bd. of original jurisdiction. will exercise have Equal, 244 (N.D.1976). N.W.2d 708 In this power of many statеd times that the our instance the order is neither directly appeal- writs, original court to issue remedial even able nor is it reviewable appeal on an from upon showing, discretionary is and proper judgment a final because the Herald is not be invoked power cannot as a party to Lian, the action between Grunen- right employed matter but wald, and and therefore would have injustice. Spence prevent possible v. North standing appeal no from a judgm final Court, (N.D. 292 Dakota District N.W.2d 53 Nevertheless, ent.2 although a discovery 1980); Sales v. District Suburban Court of order not be directly appealable or Ramsey County, (N.D. 290 N.W.2d 247 subject appeal to review on from a final Beede, 1980); City of Wiliiston v. 289 judgment, although no other adequate (N.D.1980); 235 Marmon Hodny, N.W.2d remedy provided, is the increasing ‍​​​‌​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‍caseload (N.D.1980); Burlington N.W.2d of this court apparent makes it that we Court, Northern v. North Dakota District correct, cannot through original jurisdic (N.D.1978). 264 N.W.2d 453 From this it tion, every miscarriage justice itself, necessarily follows that the court on may perceive someone present to be in an basis, a case-by-case will determine whether interlocutory order of a lower court. How original jurisdic or not it should exercise its ever, in this alleged case it is Marmon, supra; Burlington tion. North merits of the issues involve a matter of ern, supra; ex Foughty State rel. v. Friede public substantial interest Spеnce, su [see rich, (N.D.1961). 108 N.W.2d 681 pra], the First right Amendment of free press. dom of the Furthermore, the issues We have also indicated numerous times involve a case impression, of first insofar as that we original jurisdiction will exercise construction concerned, this court is where is threatened and no the so-called “shield” other remedy adequate is or allowed law. 31-01-06.2, N.D.C.C. Because the order of Spence, supra; Malony Cty. v. Cass Court the District Court nor, is neither appealable Juris., (N.D. Increased 301 N.W.2d 112 apparently, subject appeal review on 1980). determining In if another remedy is from a final judgment, and it in because provided law, we have considered wheth volves a public interest, mattеr of some we er or not the order we are asked to review determine to exercise our original jurisdic appealable is we have indicated that a tion and review the order of the District supervisory writ is not intended to abe Court the Herald produce for appeal substitute for nor is it intended to be Leng's review the photographs taken by a used in adequate lieu of remedies Herald photographer at the scene of the Spence, supra. available under the law. In question. accident in determining adequate whether or not an available, remedy we have said that an The primary issue in this case arises aas appealable order which is not as a final result of dispute between the principle appeal order but is reviewable on the of a right every man’s Leng obviously position would not and could not They raise partic- unknown to us. did not appeal ipate proceedings the issue of the order on from a final before this court. judgment any event, because the order is favorable to her right the Herald would have no position. appeal We are unaware whether or not judgment Gru- raise the issue on from a final nenwald or Lian would raise the issue on an because it is not a ing to the actions involv- Grunenwald, judgment Lian, appeal Leng. from a final because their Heath, Ohio Misс. evidence, except persons protected those N.E.2d 593 constitutional, common-law, statuto- or by a maintaining and the privilege, interest in

ry We need not determine whether press guaranteed unfettered a free and gatherers news have a First Amendment United the First Amendment to the privilege, qualified otherwise, tes- to not The Herald States Constitution. tify divulge information, including the refusing to erred that the District Court furnishing obtained as a N.D.C.C., recognize that Section result of their activities as gatherers. privi- makes more certain the enlarges and In 1973 North Legislature Dakota en- by the gatherers lege conferred acted Bill Senate codified as Section Fourteenth Amendments First and 31-01-06.2, N.D.C.C. The enactment Constitution United States. legislation apparent response of the First Amendment application Branzburg decision. the See minutes of discovery proceedings to Judiciary January 10, Senate Committee of dispute. some subject of media is 1973, of Judiciary and minutes the House 847 Oxberger, v. 258 N.W.2d Winegard 27, February Committee of 1973. Section 905, 1977), 98 (Iowa cert. denied 436 U.S. N.D.C.C., provides: 2234, 56 L.Ed.2d 402 In Branz S.Ct. “Disclosure of news sources infor- and burg Hayes, 408 U.S. 92 v. S.Ct. required only mation on court order.—No (1972), 626 States 33 L.Ed.2d United person be required any shall in proceed- held news Supreme Court ing hearing to any or information appear testify men before a State or to any or the of procured source abridge grand jury Federal did not person or while the engaged obtained speech of press guaranties freedom of gathering, writing, in or photographing, subsequent Amendment. the First Some editing by news and was or employed by attempted lower courts have to decisions acting any organization publishing in facts, i.e., appear to limit that decision its news, broadcasting or by unless directed ances newsmen before or Federal of State an order of district court state of this Annot., grand juries. See 99 A.L.R.3d which, hearing, after finds fail- that the example, As an in Democratic National ure of disclosure of such evidence McCord, F.Supp. 1394 Committee v. miscarriage cause a of (D.C.Cir.1973),Judge Richey, discussing рroceed- We will limit our review in this Branzburg, distinguished the decision and interpretation ing application to the of civil indicated that considerations in dis Neither alleged statute. side has those in covery vastly different from invalid statute is on its face.3 context, news the criminal and held that “qualified privilege” men had under The Herald also dis that the having testify. First its Amendment from to trict court abused discretion in determin (D.C. Smith, miscarriage also Zerilli See v. 656 F.2d that a of oc would Cir.1981). Other cur if photo courts have reached the Herald not disclose the opposite conclusion, is no holding graphs. that there The Herald does not contend See, beyond First Amendment our privilege involved. review of mаtter extends e.g., City determining Forest Hills of whether or not the Utility Co. District issue, 31-01, N.D.C.C., V, 3. Because was not we do are found in N.D. raised as an Article authority Legislature, not decide the substance of R.Ev. The Section 31-01-06.2 Court, regu- any opposed authority not of the North of this found Dakota Rules judicial provides: late proceeding. admission Rule Evidence. 501 thereof provided “Except by VI of the 3 of Article as otherwise constitution grants promulgat- North Dakota the Su- Constitution these or other rules statute preme authority State, promulgate Supreme Court the rules “to ed Court of this no procedure, including appellate procedure, privilege” has a to refuse to be wit- state; ness, matter, all ...” any be followed the courts of this to disclose refuse etc. Many privileges Chapter same found in Court abused its discretion and both sides before we can resort legislative agree history that an abuse of discretion to construe a that statute ambiguous. standard of review before court. must be When the Therefore, wording of a that is the standard review statute is clear and free of all Adoption ambiguity, the letter apply. we will Matter of of it is not to be disregarded Gotvaslee, (N.D.1981). pretext under the pursuing 312 N.W.2d 308 spirit. 1-02-05, Sec. have indicated that a trial court N.D.C.C. We find abuses its nothing ambiguous in the statute. It is in an arbitrary, discretion when it acts un limited disclosure of reasonable, cоnfidential sources. unconscionable manner. See applies, by terms, It “any its own infor Dobervich v. Cass Public Central School mation or the any ‍​​​‌​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‍source of Dist, (N.D.1981). information” N.W.2d Further gatherer. obtained a news If we were more, an abuse of discretion the trial impose requirement court is never assumed but must affirm applies only statute to disclosure of atively City established. of Grand Forks v. sources, confidential we would violate Sec Herald, (N.D. Grand Forks 307 N.W.2d 572 1-02-02, N.D.C.C., requires us to 1981). construe words in statute in their ordi Leng urges that we ap- hold the statute nary sense unless a contrary intention plicable those instances in which the plainly appears. We can no find intent in information sought has been obtаined wording of statute that its protec the Herald from a confidential source. In tion be limited to confidential sources. support position Leng of her refers us to legislative history concerning the enact- imply We do not that there is no 31-01-06.2, ment of Section N.D.C.C. That requiring difference between the disclosure history does testimony reveal that the be- of a confidential source or confidential in fore the committees hearing the bill re- formation the disclosure of ferred protection to of confidential sources. information or sources that are not confi appears There also to be little doubt that a Confidentiality dential. is a matter which a fоrced revelation aof confidential may source district court desire to take into consid gatherer a news could have a “chilling ef- eration in determining whether or not the fect” ability on the gatherer news to failure to disclosure would result in obtain from confidential a miscarriage justice. of simply We note sources in the argues future. Leng that that confidentiality is not a threshold re because the statute is not entirely quirement clear as for the gatherer news to receive applies to whether or not it to the disclosure of the shield statute. Other of a nonconfidential photograph public jurisdictions of a have indicated that there is event, we have reason legis- to refer also a vast difference between disclosure in lative history to reach the result that the a civil matter in which the gatherer news protection of the statute is party, limited to the not a a civil action such as an action disclosure of confidential sources. We are for slander or libel in which gath the news aware that at least jurisdiction one party, erer is a and a See, criminal action. implied a requirement confidential-source in e.g., Fields, Loadholtz v. supra. However, gatherer statute for a news N.D.C.C., to obtain makes no dis protection of the shield law. See Andrews tinction between civil and criminal actions Andreoli, 92 Misc.2d N.Y.S.2d actions in which the gatherer is or (S.Ct.1977); People v. Dupree, 88 is party. statute, not a The its own Misc.2d terms, (S.Ct.1976). N.Y.S.2d 1000 applies “any proceeding or hear A Federal court has held that ing.” confidentiali- Again, we do not imply that these ty is Fields, immaterial. See Loadholtz v. are matters which the trial court may not F.Supp. 1299 (M.D.Fla.1975). consider; That de- the trial may court consider such cision was based on common law and not on matters in determining whether or not fail a statutory interpretation. ure to disclose will result in a miscarriage however, finding that the do, only hold that method which the evidence can either be obtained is from to invoke the statute the news right gatherer solely upon the is not deрendent type required as an is not absolute con- disclosure, dition sought. a in which disclosure but that district action court may availability consider the of the evi- that we urges Herald construe dence from other sources in determining apply only those instances statute whether or not a miscarriage justice rea- litigant every has exhausted which would occur if were not ordered. alternative source of information. sonable such that has not made It jurisdictions Some which have showing in this Herald instance. Thus the matter, considered this either under a com photograph one publish by the is the gatherer sure meth flow against the free of information other evidence, by od whiсh such of evidence interests; important whether or not the effect, obtained. re similar can be That necessary information critical to the quirement requirement of exist the the cause of pleaded; involved action or defense probable ence of to believe the cause that that other reasonable means available gatherer source has evidence his sought which to obtain the information which is issue relevant and material to an exhausted; have been that it does not proper party requesting of concern to the appear from the the record that action or the disclosure were deleted from the bill рatently defense is frivolous. See Gulliver’s amendment on the See floor Senate. Periodicals, Levy Ltd. v. Circulating Chas. Senate, page Journal the Ses of 43d Co., F.Supp. (N.D.Ill.1978), 455 1197 99 A.L. sion, Legislative Assembly. North Dakota 37; Winegard Oxberger, supra. R.3d only requirement left in was the bill striking that district proper court find that the the balance be failure such given gather evidence “will tween the to news cause a miscar of riage the shield the obligation deletion bill ers statute and from the specific requirement give testimony, Her of all citizens to relevant which the impose ald now asks us to that the the we hold District Court did not order that require may argument District Court discretion. is no abuse its There disclosure dimin Lian, argument invоlving Leng, ishes the Herald’s lawsuits regard. this Co., Nelson v. Although Westland Oil are frivolous. the F.Supp. Grunenwald (D.N.D.1951); argues Leng Gimble v. that has not Herald shown Montana-Da Co., requests Utilities 77 N.D. kota the information she is not N.W.2d that sources, from we specific conclude that a conclude available may which be considered one of the factors showing has been adequate made. that In this instance the copy not seek a of the trial court. Leng that did It is true published so that were taken of an accident photographs which photograph persons pictured city could contact in the streets of the of she scene witnesses to the may who have been photographs therеin tak- Grand Forks. One of any showing Leng make accident nor published. We as- en the Herald was identify those attempted that she had any photographs sume that one of the tak- personal not the it is witnesses. published the Herald could have been en potential witnesses testimony of course, and, argument there could be no Rather, she Leng seeks. photograph such a was not available —and that allegation support her pleadings policy —that of the Herald is to make because eyewit- While impact is an issue. point of photographs of such available to the copies assistance in testimony would be of ness Therefore, public. establishing рoint impact, photo- any will not violate con- of the accident scene would be more graphs fidentiality persons of the Herald or exact graphically descriptive of the location. appearing photograph. We also as- Furthermore, subject photographer request sume did not mind in recall- vagaries of the human permission present of the persons at the point some time what a saw at a photo- scene of the accident to take the knowledge photo- It common that past. graph. Although argues the Herald that an accident are ordi- graphs of the scene of persons may unwilling such to be in law- nary attornеys tools which trial use graphed at the scene of an accident in the dispute Because of the suits of this nature. they future if are aware their point impact as to the might public, argument be made this would significance greater even than take on an appear to be without merit in view of the might have. estab- they otherwise fact that the pic- Herald such a that there were no other lished ture daily newspa- of its own accord in its the accident. The taken of the scene of per. The fact that the sought accident, city investigating officer is not confidential be more reason for officer, by deposition testified police requiring disclosure. the decision any pic- did not take police department of the trial court to disclosure must the scene of the accident. There- tures of finding nevertheless rest of a mis- fore, we believe that has shown that carriage Because the issue in available means of she has exhausted other point impact the lawsuits involves the securing information. particular photographs may and because the contain issue, Although confidentiality unique we said we that sought require the information to be disclosedis not believe to refuse to their disclo- necessary prerequisite jus- sure would constitute a miscarriage statute, that it tice.4 shield we also indicated is becausе, inspection in era the words of its We cannot state as a matter fact that the photographs determining counsel at the District in would be beneficial “Precisely findings same point impact object- are re- Court: quired compel because the Herald procedure the statute when the is to camera as when it is to inspection ed to an in camera in graphs inspect and the trial them. court did not compel a turnover the court to counsel for because of the the are use at trial.” they scene of the only photographs ble, accident and because are position It is the Herald’s that availa- disclosure to a the acсident scene judge represents precisely relevancy. Photographs we assume trial same threat to the interests privilege camera their help- protected by ordinarily of the scene of ful to a prove beyond any the to counsel or to the accident jury require as disclosure and we cannot inspections world. in camera have doubt that the court, she, permitted party requesting been closure has shown that where the dis- will be vital when neither the trial inspect permitted nor this them. The Herald has been the information is rele- Court material; permit that it could an in cam- vant not be secured refused to dueting

Here, newsgatherer fishing expedition is not asked to without any observed; he testify merely to what he knowledge firm gatherer that the news produce photographs asked to that he took information which will be of assistance in a street, public in a one of which action, determination of the legal or by published.5 requiring disclosure of confidential informa- tion instances in which the necessity for argues The Herald also a free and press unfettered outweighs the disclosure in this instance would have a to be benefits obtained from such disclo- “chilling effect” on the First Amendment sure, we are confident that our district rights gatherers. agree. of news We do not courts, under provisions application Each case our shield Sec- 31-01-06.2, N.D.C.C., will be able necessarily weigh the necessary factors, balance be decided a district court on the the competing interests, facts peculiar protect to that case. Our decision cannot gatherers from any construed, as the Herald apparently unwarranted invasion of the gather- fears, precedent as a which will permit fish- privilege provided by ers’ This, the statute. ing expeditions gatherer’s into a news however, files is not such a ease. a precedent permit nor as which will a news balancing the competing interests in gatherer to be to submit to dis- case, this we believe the interest of the covery procedures in casе in which the in protecting particular Herald infor-

newsperson is not a party, the remote slight mation is and the showing required possibility may have some great. therefore is not Leng has information which would be beneficial to a sustained her burden. is, party legal in a action. Limited as it We conclude ‍​​​‌​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‍that the District Court did then, case, to the facts of this in which the not abuse its discretion in requested Herald is disclosure of the photographs by the Her- taken at the scene of an accident in a street, ald. one of which photographs appar-—

ently selected at random or for reasons petition for a supervisory writ other than protecting the confidentiality of denied. persons pictured therein —was daily newspaper, Herald’s we fail to n ERICKSTAD, J., PAULSON, J., C. any chilling see effect which might arise concur. will, our from decision. Future cases as we earlier, said be decided on the facts therein PEDERSON, Justice, concurring special- and not on the facts with which we are here ty- parties concerned. Should to a lawsuit controlling discovery abuse Because issues have not been proceedings by requir- raised, impossible court, it is gatherer disclosure from a news for this in this simply original proceeding, because it is easier or expensive anything less to do acquire manner, evidence in than proposed con- Walle. Justice Vande sourсe; ary Committee, considering from less intrusive and that Senate Bill legitimate ultimately had a need to see which was and other- enacted and codified as Farber, 31-01-06.2, N.D.C.C., wise use it. Matter of 78 N.J. reflect the fol- Boiardo, lowing exchange A.2d 330 See also State v. between a committee member (1980), construing sponsor N.J. 414 A.2d 14 statu- and the of the bill: tory provisions inspection. for in camera Be- thinking “REP. WINKJER stated that he is cause we believe the issue of an in camera may another situation where a newsman inspection by longer the trial court no is an have covered an automobile accident and af- proceedings, in issue these we make no further terwards a civil suit arose. Would this bill upon position comment Her- taken prohibit deposition to find out if the regard ald with thereto. newsman had information. you “SENATOR HOLAND stated wouldn’t interesting 5. It is to note that minutes of the think the court could care of that.” take February 27, 1973, meeting House Judici- NDCC, ambiguous, It is information or source of information presented protected. and all of the extrinsic which is I chilling can see no legislative intent that is fails to disclose on newsgathering regarding effect the tak- statute was absurd. If the intended to not may of a situation which be impenetrable shield provide an controlled general public. and was viewed of, and at whim the entirely by, Grand applies If the statute to the photographs, Herаld, If, it is useless and absurd. Forks does, agree which I it don’t then I am of the hand, it the other was intended to autho- on opinion properly it was not followed in the to make a judge finding based on the rize Assuming instant situation. the statute ap- evidence, equally absence absurd. case, plies to the in this then legislature should either court, on a proper showing, will be in camera disclosure whenever the shield is required hearing. to conduct a The statute claimed, requirement or eliminate the implies hearing that at the seek- judge finding. make a ing the will required be to either probable establish cause for the court to Justice, SAND, concurring specially and require the submission of the photogrаphs dissenting. or, to the court for an inspection in camera I concur in the end result not but alternative, competent in to submit evi- rationale or method result was dence to enable the court to find if the reached or obtained. failure to disclose will a miscarriage cause Initially, my opinion, in NDCC 31-01- § generally, especially 06.2 and under the phrases Technical words and used in a case, apply facts of this does not acquired statute which have peculiar and photographs taken at the scene of the acci- appropriate meaning in law shall be con- making dent. this statement I am not according strued peculiar to such ap- and implying photographs may that other never propriate meaning or definition. NDCC be treated as confidential or privileged. Also, 1-02-03. statutes are § to be con- Under different facts or extenuating cir- liberally strued with the view to effect its cumstances, here, present which are not objective promote justice. NDCC photographs may be treated or considered 1-02-01; Hughes v. § State Farm Mut. privileged. confidential or Co., Auto. (N.D.1975). Ins. 236 N.W.2d 870 essence, provides: “finds,” The term as used the statute “No shall be ... question, is a legal expression1 and is any information or the source of comparable to the phrase “finding of fact” procured or obtained which must upon be based engaged competent

while ... in gathering, writing, relevant photographing, employed ... and evidence and inferences which be acting any organization properly drawn from engaged in such evidence and publishing news, upon broadcasting assumption speculation. unless Other- wise, directed an order the findings of a district court clearly erroneous. which, hearing, ... after It requires finds that the probable more than cause. The failure of disclosure ... will probable cause a mis- cause concept was in original carriage [Emphasis bill but was amended out.2 added.] Dictionary 1. “Find” is defined in Black’s Law “Unless directed a final order of a dis- as follows: “To announce conclusion trict court of this state which after a facts; disputed jury fact or state of as a is said expressly finds: controversy ‘to find a will.’ To determine a probable the existence of cause believe parties; jury favor of one of the as a ‘finds for respondent or his source has evi- ” plaintiff.’ also, “finding.” Black’s dence which is relevant and material to an Dictionary (5th 1979). Law ed. proper petitioner, issue of concern to the introduced, initially 2. Senate Bill No. following language: contained the thereof, nor who knew the contents anyone cause probable I believe ‍​​​‌​‌​‌‌​‌​​‌‌​‌‌‌​​‌‌‌‌‌‌‌​‌‌​​‌​‌​‌‌​​​‌‌‌‌‌​‍they court to viewed the court. justify the were this case to

shown photographs production оrder the supervisory the writ petition In the for court so by the examination for the camera affidavit, applicant attorney, in an stat- the finding wheth- a valid could make the court the acci- appears shortly “It after ed: will occur miscarriage of er or not a from the Forks photographer Grand dent are not disclosed. photographs if the photographs of the Herald took one or more submitted the evidence my opinion Stennes, Witness John at accident scene.” only case warranted in the instant the court court, hearing the district testi- the to order the submission cause probable the photographer he is the chief fied that for in camеra to the court the the Forks Herald and is custodian Grand is not sufficient inspection, but otherwise accident photographs of the automobile the will cause failure to disclose find that a in this case. He also testified justice. miscarriage of one Forks Herald Grand NDCC contemplated by proceedings The ask he not have to graph, and that excep- come under the do not 31-01-06.2 § pictures. to take the anyone’s permission NDRCivP, 52, such as in Rule tion stated really never answered he generally as or motions 12 or Rules or anyone gave if him confidential question gov- instead They rule. are in the stated regarding otherwise inside or comparable statute and by the еrned pictures. taking of Chap- out in proceedings set similar I do not believe the these facts Under 27- 27-20, 27-20-44 and especially §§ ter justifiably find that a nondisclo- court could pro- specifically 20-50, the statute wherein a miscar- cause sure of finds.” . . . the court vides “if riage of number used a could have legislature The earlier, I that the As stated do not believe “if as expressions, such other terms applies question statute in decides,” determines, concludes the court case, particularly paper when the in this but instead expression, similar offering and is published one of finds.” “if the court expression it used the given price. at a On it for sale to the legis- conclude must therefore I wоuld affirm the decision of basis deliberately, es- expression chose lature denying application district court subjected to when the act was so pecially supervisory writ. . case here. as was the amendments could make agree the court I cannot finding that a failure to

valid jus- miscarriage of will cause a evidence submitted. upon the

tice one that except for the photographs, not de- were newspaper,

appeared byor took them who

scribed provides: Bill amended now respondent is the 2. disclosure evidence, “By this state of a district court of an order or evidence which such method obtained; failure of effect, finds that which after can be of similar evidenсe will cause a mis- of such of such failure of disclosure justice.” carriage miscarriage will cause 1973, page and Ch. Senate Journal Laws. 258 of 1973 Session notes principle mon-law or a specific have simply obtained could have indicated disclosure should be required $25, person requesting paying in those instances in which the infor Leng did published photograph may do. mation desired is not available from anoth request photograph See, er copy e.g., Fields, source. Loadholtz v. policy supra. of the Herald. Other accordance with the courts have indicated that published photo- Herald there must be a compelling notes that interest in order people permit countervailing contains who graph right to take Leng precedence gatherer’s observed the accident and that over the have right protect has made no secure that effort confidential sources. Zerilli v. Smith, spectators pictured supra. graph identify the We believe that both of might that she photograph in order these matters should be considered evidence from them. trial in determining obtain needed court whether or not the refusal to require disclosure would re as originally Bill 2077 intro Senate sult in miscarriage under our provision duced contained a which would statute. The these result of varied ap court expressly have a district proaches appears to result in a balancing of find, disclosure, ordering that disclo factors, including all interest in

Case Details

Case Name: Grand Forks Herald v. District Court Ex Rel. Grand Forks County

Court Name: North Dakota Supreme Court

Date Published: Aug 12, 1982

Citation: 322 N.W.2d 850

Docket Number: Civ. 10242

Court Abbreviation: N.D.