Ellen MARKS, Petitioner, v. Honorable Karen J. VEHLOW, Magistrate of the Fourth Judicial District of the State of Idaho, the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada, and the Magistrate‘s Division Thereof, Respondent.
No. 13938
Supreme Court of Idaho
Oct. 21, 1983
671 P.2d 473
David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for respondent.
DONALDSON, Chief Justice.
Michael Clary was awarded custody of his natural daughter Alysia Clary, a minor child, pursuant to an Arizona divorce decree issued on May 12, 1975. Following the divorce, Mr. Clary and Alysia lived in Nebras-
On September 10, 1980, Randall Gilmore appeared before Magistrate Vehlow without the child. After Gilmore was questioned under oath, the magistrate held him in contempt of court and committed him to jail. The magistrate also issued a warrant for the arrest of Eugenia Gilmore and set a hearing for September 18, 1980, at 9:00 a.m., to review the contempt of Mr. Gilmore. On September 18, 1980, a newspaper, The Idaho Statesman, published an article written by the petitioner, Ellen Marks, a reporter, which related a recent interview concerning the child between Marks and Mrs. Gilmore. Also on September 18, 1980, Marks went to the courthouse to attend the hearing on Mr. Gilmore. While waiting for the proceedings to commence, Marks was served with a subpoena by Mr. Clary‘s counsel. Shortly after receiving the subpoena, Marks left the courtroom. Thereafter, Mr. Clary‘s counsel moved for a bench warrant for the arrest of Marks which the magistrate indicated would issue upon written proof of service. Later Marks, by counsel, moved to have the subpoena quashed for ineffective service. The motion to quash was denied and a bench warrant was issued. A motion to quash the bench warrant was filed on September 18, 1980.
Petitioner attempted to appeal the orders of contempt to this Court which attempt was dismissed as being from nonappealable orders.
The contempt sanction continued to run against Marks until receipt by the magistrate court of a stipulation that the child had been returned to the father. A final order was filed on February 2, 1981, which terminated the sanction effective January 26, 1981. Thereafter, Marks filed a petition for a writ of review in this Court. We affirm.
Where orders of contempt are examined under a writ of review1 the prime question for determination is whether the inferior tribunal exceeded its jurisdiction. E.g., Dutton v. District Court of Third Judicial District in and for County of Owyhee, 95 Idaho 720, 518 P.2d 1182 (1974); Barnett v. Reed, 93 Idaho 319, 460 P.2d 744 (1969). Our initial inquiry must therefore focus upon whether the magistrate possessed subject matter jurisdiction power to order the contempt sanctions imposed. We will also consider whether there exists a valid newsman‘s testimonial privilege which should have shielded Marks from the orders of contempt.
I.
An attorney magistrate is a judicial officer of the district court whose jurisdiction is established by legislation,
A writ of habeas corpus was issued and served on Randall Gilmore commanding that Alysia Clary be brought before Magistrate Vehlow on September 10, 1980. At the September 10, 1980, proceeding the magistrate held Gilmore in contempt, ordered him committed to jail, and set a hearing for September 18, 1980. It is argued by Marks that the September 18 hearing was limited to a review of the contempt of Randall Gilmore.2 From this argument and the subsequent voiding of the order of contempt against Gilmore and his discharge from custody by the district court under separate habeas corpus proceedings, Marks contends that there was no jurisdiction to support the September 18 hearing. Without jurisdiction for the September 18 hearing, similarly there would be no jurisdiction for the subsequent proceedings at which Marks was held in contempt. We do not agree. From our review of the record, we conclude that the September 18 hearing was a continuing part of the initial habeas corpus proceeding.3 We conclude that the
II.
Ellen Marks was served with a subpoena for the September 18, 1980, hearing on that date. By counsel, she moved to quash the subpoena which motion was denied.4 Later that same day, upon written return of service, a bench warrant was issued for the arrest of Ellen Marks. A motion to quash the warrant was made, argued on September 19, and denied. Thereafter, Marks was called to the witness stand. During examination, she declined to answer questions directed to the identities of confidential sources and the location of a confidential meeting that she had had with the undisclosed confidential sources.5 The questioning of Marks was aimed at obtaining information about the whereabouts of the child.
The refusal was based upon an assertion that the sources were protected by a qualified newsman‘s privilege to conceal the identity of confidential sources based upon the first amendment. Magistrate Vehlow recognized no privilege and ordered Marks to answer the questions. Marks refused and Magistrate Vehlow held Marks in contempt and ordered her incarcerated until further order. Marks attempted to appeal this order to this Court on September 26, 1980, which appeal was dismissed.
“IT IS HEREBY ORDERED AND THIS DOES ORDER that the Order of Contempt entered by this Court on September 19, 1980, be modified to provide that the witness, Ellen Marks, shall pay the sum of FIVE HUNDRED & NO/100THS DOLLARS ($500.00) for each and every day she continues to refuse to answer the questions earlier propounded to her at the hearing on September 19, 1980.”
On October 14, 1980, following another hearing, Magistrate Vehlow entered another order of contempt which provided:
“THIS COURT DOES ORDER AND THIS DOES ORDER That for each day that Court is in session that Ms. Marks refuses to purge herself of contempt, that she be fined five hundred dollars ($500.00). All fines accruing under this Order of Contempt are due and payable at the first of every month following the acts of contempt excepting the fines ordered on October 6 and October 7, 1980 which are due and payable on October 14, 1980.”
Petitioner Marks contends that Magistrate Vehlow had neither the power to impose the contempt sanctions utilized nor the power to modify the September 19, 1980, order of contempt from incarceration to a daily fine. We disagree. We are mindful of petitioner‘s arguments for a qualified newsman‘s privilege which if existing would vitiate these orders of contempt. In due course, we will consider the question of a qualified newsman‘s privilege.
The attorney magistrate in conducting habeas corpus proceedings exercises the judicial power of the State of Idaho.
A recalcitrant witness may be cited for contempt. See In re Niday, 15 Idaho 559, 98 P. 845 (1908). Continued refusal to answer questions within an area results in but a single contempt of a continuing nature. Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957). To counter such contempt, civil as well as criminal contempt sanctions may be imposed;6 how-
Marks was adamant regarding her refusal to answer the questions first propounded on September 19, 1980, which resulted in but a single contempt of a continuing nature. Magistrate Vehlow first imposed a civil sanction when she ordered Marks incarcerated until she purged herself of the contempt.
Appellant argues that the magistrate‘s modification of the order of contempt was made without authority and therefore was void. Appellant contends that the September 19 order of contempt was appealed to the Supreme Court which appeal divested the magistrate of any authority to modify the order. See I.A.R. 13(b). However, there is no appeal as of right from a contempt order.7 See
The exercise of the broad power to impose civil sanctions which we recognize today is not without limitation. See Yamaha Motor Corporation, U.S.A. v. Harris, 29 Wash.App. 859, 631 P.2d 423, 428 (1981)
In reaching this conclusion, we had to consider the issue of a qualified newsman‘s privilege. While numerous cases have considered the newsman‘s privilege issue, e.g., Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) cert. denied, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); United States v. Burke, 700 F.2d 70 (2d Cir. 1983); In re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir. 1982), cert. denied sub nom. Arizona v. McGraw-Hill, Inc., 459 U.S. 906, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973); Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Steelhammer, 539 F.2d 373 (4th Cir. 1976) (vacated judgment of contempt), on reh‘g, 561 F.2d 539 (1977) (affirmed judgment of contempt); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981); Silkwood v. Kerr-McGee Corporation, 563 F.2d 433 (10th Cir. 1977); Pankratz v. District Court In and For City and County of Denver, 199 Colo. 411, 609 P.2d 1101 (1980); Commonwealth v. Corsetti, 387 Mass. 1, 438 N.E.2d 805 (1982); Matter of Roche, 381 Mass. 624, 411 N.E.2d 466 (1980); Newburn v. Howard Hughes Medical Institute, 95 Nev. 368, 594 P.2d 1146 (1979); Matter of Farber, 78 N.J. 259, 394 A.2d 330 cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978); Clampitt v. Thurston County, 98 Wash.2d 638, 658 P.2d 641 (1983); Senear v. Daily Journal-American, 97 Wash.2d 148, 641 P.2d 1180 (1982), we have been unable to find any reported cases which have considered the particular question before us. The question is whether there is in Idaho a qualified newsman‘s privilege which a journalist may assert while a witness in a habeas corpus proceeding.
Notwithstanding our basic agreement with the following quotation from Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir. 1981) (consolidated cases involving leaks of governmental transcripts to newspapers):
“Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices.... [T]he press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with his news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.” (Footnotes omitted.)
We believe that here the compelling state interests—the sanctity of the writ of habeas corpus and the safety of the child—outweigh any public interest in an unfettered press.
We view this case as presenting a unique set of circumstances—a habeas corpus proceeding in which a journalist is a witness. Because we find a compelling and legitimate governmental interest in assur-
Here, a child was sought by means of a writ of habeas corpus.10 While possible infringement of a journalist‘s news gathering right may occur by requiring disclosure, the disclosure is essential to assure the continued vitality of habeas corpus proceedings which in turn provide protection against unjustified intrusions upon our individual liberty.
Marks by her responses on the witness stand clearly revealed that she possessed relevant information. She testified that she had been at a recent meeting at which the child sought by the habeas corpus proceedings was present. Therefore, the location of the meeting and the identities of those present was obviously material and relevant.
Argument was made that the information had become stale with the passage of time. While this may be true, we will not disturb the orders of contempt because the proper benchmark for determining the relevance of the information is at the onset and such determination need not be repeated.
We affirm.
No costs allowed.
No attorney fees allowed.
BAKES and HUNTLEY, JJ., concur.
SHEPARD, Justice, specially concurring.
I concur in the result obtained by the majority opinion but find it necessary to express my disagreement with its rationale.
Inexplicably missing in the majority opinion (except for a footnote dealing with relevancy and materiality) is this Court‘s decision in Caldero v. Tribune Pub. Co., 98 Idaho 288, 562 P.2d 791 (1977). A possible explanation is that the author of today‘s majority was among the dissenters in Caldero. In Caldero, the Court was squarely presented with the question of an absolute or qualified newsman‘s privilege under the United States or Idaho Constitution. The Court clearly rejected the existence of either an absolute or qualified privilege under either Constitution. The Court reviewed and applied the decisions of the United States Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950); Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); and Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958), which was cited with approval in Branzburg v. Hayes, supra.
As stated by then Judge Potter Stewart in Garland:
“If an additional First Amendment liberty—the freedom of the press—is here involved, we do not hesitate to conclude that it too must give place under the Constitution to a paramount public interest in the fair administration of justice. ‘The right to sue and defend in the courts is the alternative of force. In an organized society, it is the right conservative of all others, and lies at the foundation of an orderly government.‘” 259 F.2d at 549.
And as stated by Mr. Justice Byron White in Branzburg:
“Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the first amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.
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“We are admonished that refusal to provide a First Amendment reporter‘s privilege will undermine the freedom of the press to collect and disseminate news. But this is not the lesson history teaches us. As noted previously, the common law recognized no such privilege, and the constitutional argument was not even asserted until 1958. From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished. The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press.” (Emphasis supplied.) 408 U.S. at 689-691, 698-699, 92 S.Ct. at 2661, 2665, 33 L.Ed.2d at 644, 649.
In both Bryan and Blackmer, the United States Supreme Court made clear that the power of testimonial compulsion is effective to the functioning of the courts. In United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), the Court emphasized that every man, including the President of the United States, is subject to compulsory process for the production of evidence and stated, “Whatever their origins, these exceptions to the demand for every man‘s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” 418 U.S. at 710, 94 S.Ct. at 3108, 41 L.Ed.2d at 1065. In Pell, the court held that the search for truth must “override the consequential, but uncertain, burden on news
The majority furnishes no authority which in my judgment overturns or modifies the above decisions or language of the United States Supreme Court construing the asserted absolute or qualified privileges. Whatever may be the differences expressed by the lower federal courts or state courts, I have always believed that the decisions of the United States Supreme Court on questions regarding the Constitution of the United States were controlling and binding upon all other courts. I have also believed that, when a question is presented to this Court, the doctrine of stare decisis requires us to examine the previous decisions of this Court bearing on the same question and, unless those previous decisions are overruled or modified, they are dispositive and to be followed.
The majority opinion would seem to imply that Sierra Life Insurance Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980), has somehow created a qualified newsman‘s privilege. If so, I must disagree. As I view Sierra Life, it continued the validity of Caldero, stating: “The debate over the validity of Caldero was apparently put to rest by the United States Supreme Court in Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).” Sierra Life, supra, 101 Idaho at 800, 623 P.2d at 108. The court in Sierra then proceeded to discuss whether discovery was being used to harass litigants, which claim it acknowledged was not unique to journalists.
Contrary to the view expressed by the majority here, the Court in Sierra did not rule against required disclosure, but rather remanded to the trial court for reconsideration of the relevance question. Sierra, in any event, principally dealt with the question of the imposition of appropriate sanctions for refusal to comply with discovery procedures.
Insofar as the majority opinion is to be construed as holding that evidence sought from a witness in open court must be relevant and material to the issues before the court, and that such decision is committed to the sound discretion of the trial court, I have no disagreement. That rule of law is fundamental and now exists as to all witnesses and their testimony, regardless of their professional calling. However, if the opinion of the majority today is to be construed as creating a privilege to refuse to answer a propounded question because, in the witness’ opinion, it is not material or relevant, I must disagree.
In the instant case, beyond the shadow of a doubt, the testimony sought to be elicited was material and relevant. The courts of two states had placed the legal custody of the child in its father. The child‘s mother and her husband refused to deliver the child to its legal custodian, concealed the child, and refused to reveal her whereabouts. The legislature of this state has denominated such conduct criminal as constituting the crime of kidnapping. The record reveals that a charge of kidnapping was filed. The instant action was brought in the courts of the State of Idaho, where the child was allegedly being concealed, seeking full faith and credit for the decrees of our sister states and the enforcement of those decrees. As pointed out by the majority, jurisdiction existed both over the cause of action and over the person of appellant Marks.
I agree with the majority in its rejection of the argument of petitioner that the information sought to be elicited from her had become stale with the passage of time. The briefs do reveal that the legal guardian has in fact regained the physical custody of the child, but only after a search of five months and an expenditure of some $17,000. Clearly, that physical custody was gained without the assistance, approval, or cooperation of either the Gilmores or Marks.
ALLAN G. SHEPARD
JUSTICE
Notes
“The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.”
“A hearing to review the status of respondent Randall Gilmore‘s contempt is set for Thursday, September 18, 1980 at 9:00 A.M.”
“Randall Gilmore ... be brought before this Court on the 18th day of September 1980, at the hour of 9:00 a.m. for a review of a Habeas Corpus Petition ....” (Emphasis added.)
The character of the September 18 hearing is further reflected in its transcript by the following:
“THE COURT: ... Mr. Gilmore, this hearing was set up to basically review the habeas corpus petition that we went through ... sometime last week, and find out what information you might have at this point on the location of the child, Alysia, or whether in fact of course you know where the child is.”
“The questions which Ellen Marks refused to answer claiming the above [first amendment] privilege are the following:
“1) From whom did you first receive your information concerning Mrs. Gilmore?
“2) Was the individual a male or a female?
“3) Where did the meeting take place?
“4) Was that the residence of this person?
“5) Was Mrs. Gilmore present at the meeting?
“6) Where did the meeting take place?
“7) Was it indicated to you in the course of any of your conversations that evening whether Mrs. Gilmore and the children were residing in that residence at that time?
“8) Again, I would like to know the identities of the four adults who were present at the meeting?
“9) The person with whom you had the first telephone conversation, when did the conversation take place? Yesterday. Who placed that call? I did. Who was the person you called?
“10) You said you had two conversations with another person. On what days did those take place? Yesterday. Who placed those calls? I placed the first one, the other person placed the second. Who is the person you called? What is the telephone number of the other individual you called that we just discussed?
“11) How about the other person? The one you called one time yesterday. Is that the same person with whom you first spoke about Mrs. Gilmore? Yes. Did you attempt to obtain a release from your confidentiality agreement in you [sic] conversation with that person? Yes. Did or did not that person agree to release you from that promise? That person did. But that person does not object to your supplying his or her name. Is that correct? That‘s true. What is the name of that person?
“12) Is the house where the meeting took place in Garden City?” (Emphasis added.)
In light of our adopted rationale, we need not be concerned with whether Marks waived the privilege by answers made during examination which may reflect that a privilege if once viable was no longer extant.
“We recognize that the news media rely upon confidential sources in the preparation of many stories, particularly those involving government or large organizations. The ability to keep the identity of those sources confidential is not infrequently a prerequisite to obtaining information. This interest, while legitimate, is not so paramount that the legitimate discovery needs of a libel plaintiff must bow before it. But by the same token a trial court can be expected to exercise caution when it orders these sources to be revealed.
“As the Supreme Court of the United States has suggested, the first question to be answered is whether the identity of the sources is relevant. In Caldero, the very crux of the case was whether or not the ‘police expert’ actually existed, and whether or not he said that which the newspaper published. Relevance was there established beyond quibble.” See also Riley v. City of Chester, 612 F.2d 708, 718 (3d Cir. 1979) (“trial courts should be cautious to avoid an unnecessary confrontation between the courts and the press“).
We discern no due process requirement that the journalist be accorded a separate hearing or proceeding at which to determine relevancy and materiality.