In Re Bridge
This is an appeal by Peter Bridge from an order of the Superior Court, Law Division, holding him in contempt for refusing to answer five questions before the Essex County grand jury and confining him to the county jail until he purged himself by answering the questions posed. The trial judge stayed the order pending an appeal and we granted the prosecutor‘s motion to accelerate the appeal for early argument.
On May 2, 1972 the Newark Evening News published an article under Peter Bridge‘s by-line concerning an alleged offer of a bribe to Pearl Beatty, a member of the Newark Housing Authority. The article contained the following statements:
Mrs. Pearl Beatty, a commissioner of the Newark Housing Authority, said yesterday an unknown man offered to pay her $10,000 to influence her vote for the appointment of an executive director of the authority.
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Mrs. Beatty said, “a man walked into my office and offered me $10,000 if I would vote for `their’ choice for executive director.”
The Essex County grand jury commenced an investigation of the alleged bribe attempt and on May 19, 1972 subpoenaed Bridge to appear before it. Bridge moved to quash the subpoena. Assignment Judge Giuliano denied the motion and ordered Bridge to appear before the grand jury. He rejected Bridge‘s contention that compelling him to testify would violate the guarantee of freedom of the press contained in the First Amendment. Judge Giuliano held that Bridge had waived the privilege afforded him by
Bridge moved for leave to appeal from the order. This court granted leave and, following oral argument, affirmed the order denying the motion to quash and directing Bridge to appear before the grand jury. No appeal or petition for certification of the appeal was thereafter filed with the Supreme Court.
On June 8, 1972, following this court‘s decision, Bridge appeared before the grand jury. When he refused to answer certain questions he was brought before Judge Giuliano who, following a hearing, directed Bridge to answer. On June 14 Bridge again returned before the grand jury and refused to answer certain questions. Judge Giuliano ordered him to answer the questions, including the five questions which were the basis for the subsequent contempt action.1 When Bridge
We first note that the two principal issues in this appeal, namely, (1) whether appellant waived his newspaperman‘s privilege accorded by Evidence Rule 27 (
Subject to Rule 37, a person engaged on, connected with, or employed by, a newspaper has a privilege to refuse to disclose the source, author, means, agency or person from or through whom any information published in such newspaper was procured, obtained, supplied, furnished, or delivered.
Evidence Rule 37 (
Appellant first argues that the term “source” in Evidence Rule 27 protects both the identity of the informant as well as that part of the informant‘s statement which was not published and that his disclosure of the identity of the informant does not constitute a waiver of his right of nondisclosure of the unpublished information. We conclude that the argument lacks substance. Evidence Rule 37 clearly states that a person waives his privilege of nondisclosure if he “made disclosure of any part of the privileged matter.” Cf. In re Murtha, 115 N.J. Super. 380, 387-388 (App. Div. 1971), certif. den. 59 N.J. 239 (1971). Here appellant disclosed in the newspaper article that Mrs. Beatty was the source of his information and also disclosed at least part of the information given him by Mrs. Beatty. We are satisfied and hold that appellant waived his newspaperman‘s privilege and can be compelled to testify before the grand jury like any other person.
We find no merit in appellant‘s contention that Evidence Rule 37 (
We turn next to the question of whether appellant was privileged under the First Amendment to refuse to answer the five questions posed to him before the grand
Appellant contends that if a reporter is required to testify before a grand jury concerning unpublished information received from a public official, such as Mrs. Beatty, then “government” will have an effective tool to prevent its wrong-doings from being brought to the attention of the public; that not only must the identity of a public employee be protected but all unpublished information received from the public employee as well. He bases his argument on the dissenting opinions filed in Branzburg. We cannot agree with appellant‘s argument. A reading of the majority opinion in Branzburg indicates that the court there considered a similar argument and refused to accept it. See 408 U.S. at 692-698, 92 S.Ct. at 2662-2664, 33 L.Ed.2d at 646-648. The court stated:
Accepting the fact, however, that an undetermined number of informants not themselves implicated in crime will nevertheless, for whatever reason, refuse to talk to newsmen if they fear identification by a reporter in an official investigation, we cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future. (at 695, 92 S.Ct. at 2663, 33 L.Ed.2d at 647-648).
Moreover, we agree with Judge Meanor that the five questions which Bridge refused to answer were relevant to the inquiry being conducted by the grand jury to determine whether an offer to bribe a housing commissioner, in violation of
It is also argued that since the court in Branzburg stated that is was powerless to erect any bar to state courts construing their own constitutions so as to recognize a newspaperman‘s privilege, either qualified or absolute, we should construe
Finally, appellant argues that Judge Meanor lacked jurisdiction to enter the order under review because the sole issue on the return of the order to show cause was whether appellant was guilty of criminal contempt. He
We find no merit in appellant‘s contentions. The record indicates that the State did not seek to punish appellant for criminal contempt in a proceeding under R. 1:10-2 but to compel compliance with the order to answer the questions propounded before the grand jury. Such a proceeding has been held to constitute civil contempt, Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), and is provided for under R. 1:10-5. See also In re Contempt of Carton, 48 N.J. 9 (1966), where the court stated, “Confinement terminable upon defendant‘s compliance is usually the hallmark of a civil proceeding.” (at 23).
We do not read R. 1:10-5 to provide that the judge who issued the order to show cause alone has power to hear and determine the issues raised in such a proceeding. As assignment judge, Judge Giuliano could properly assign the matter to another judge.
We have carefully considered the points raised in the brief filed by the amicus curiae, all of which support appellant‘s contentions. We find none of the points to be persuasive.
The order under review is affirmed.
Notes
The questions propounded to the witness were:
1. Mr. Bridge, would you please tell us whether Mrs. Beatty provided a description of the unknown man?
2. Did Mrs. Beatty provide you with specific acts of harassment and threats other than those outlined in the newspaper article?
3. Within the framework of this: “A man walked into my office and offered me $10,000 if I would vote for `their’ choice for executive director,” did Mrs. Beatty indicate who their choice for executive director was?
4. Mr. Bridge, in addition to that which is contained in the article, what else did Mrs. Beatty say? Did she say it was a tall man, a white man, a black man, a heavy man, a shortman?
5. Mr. Bridge, did Mrs. Beatty indicate when, in fact, the bribe offer took place?