*1 аpparently felt The District Court would estoppel America, Appellee, that in event collateral STATES UNITED ali evidence
preclude admission the State Court. unde record STEELHAMMER, Appellant. Richard seems, by failing pass assumed, it America, Appellee, im count, had the State Court STATES the fraud UNITED objecting creditor’s ruled that pliedly on fraud and ac grounded debt GALLAGHER, Appellant. Andrew collat creditor was cordingly objecting 75-2178, Nos. 75-2179. It is ruling. contest that estopped to erally settled, only Appeals, issues though, well States Court necessarily litigated” “which have Fourth Circuit. been judicata entitled to res Court are State Argued 1976. June effect.5 The issue estoppel and collateral July Decided 1976. litigated was not Court. fraud State not be bound The creditor should actual charac judgment.
form the form of
ter of the rather than liability, should judgment
the action or style of the 1970 amend objectives
control. The is clear are frustrated “when it
ments thé creditor has been defrauded merely proceeded in or
victimized and has judgment in the sim
dinary course to take form.”6
plest the District judgment
reversed case is remanded to and the Court, to accord with instructions evidence parties hearing admit creditor’s objecting the nature of the rests in deter- judgment
debt on which her debt in
mining dischargeability of such
bankruptcy. REMANDED WITH
REVERSED AND
DIRECTIONS. Bankruptcy Remington (6th Corporation ed. Indus- § 6. v. Lester 5. National Homes see, tries, Singer (1961) 644, 648; 1955); (W.D.Va.1972) F.Supp. Inc. Levin v. 227 Md. 1942) (10th Beneficial v. Noble 423. Loan Co. 175 A.2d Cir. 129 F.2d *2 questions direction to answer prose- of the called to the cuting counsel when stand as subpoena witnеsses under a civil con- tempt trial. They urge vacation of the judgment ground on the it has de- prived protection them of the of a qualified vested in them the First Amendment, gather news and so inform public public on matters of concern. The rationale of their is that if reporter compelled testify is to what he present has observed or heard while at a rally or meeting persons assembled to problems interests, discuss peculiar to their concern, thereafter, but general also of then in retaliation, sponsors of the occasion will in probability all bar them from later gatherings. consequence injuri- will be ous to the rank and file of the we people, told, are through losing their such advan- tages might accrue to them from this upshot information-—that the an abridge- is ment of the guarantee Amendment’s speech, “freedom press.”1 or of the Roger Tompkins, Charleston, W. W. Va. Judge sensitively was District solici- (Stone, Bowles, Kauffelt, McDavid, & claims, reрorters’ tous of the evincing his Charleston, Va., brief), W. appel- for repeated solicitude in suspension offers of lants. of the if the impending penalty appellants
Larry Simms, C., L. Washington, D. would break their He for silence. endeavored Reporters for in every way Committee Freedom of consistent with his sense of the Prеss bounden obligation uphold sovereign- as amicus curiae. ty yet of a Federal court and accord decree Wayne Rich, Jr., A. Asst. U. Atty., S. them leniency in He predicament. Charleston, Field, III, (John W. Va. A. U. S. was unsuccessful in his efforts. In the con- Atty., Jolliffe, and Frank E. Asst. U. S. again appellants frontation the again and Charleston, Va., Atty., brief), W. fоr avowed with unquestionable sincerity, their appellee. contempt, innocence of while reli- giously seeking through absolution BRYAN, Before Judge, Senior Circuit creed of freedom the was not WINTER, Judge, KUNZIG, Circuit authority, defiance but rather a stead- Judge, United States Court of Claims.* fidelity precept
fast to a of their profession. BRYAN, ALBERT V. Senior Circuit Our resolution his clash of convictions Judge: grant of minds and consciences is to Newsreporters appeal prayer commitment grounds but on less of six imprisonment months for than their In this we do not assertions. of the District in refusing obey order, its devalue the for stature of the Court’s * Sitting by designation. written in the Fourteеnth Amendment: No State shall make or enforce law which “Congress First Amendment: shall make no abridge privileges shall or immunities of abridging law . . . the freedom of the States; citizens of the United . . . press safeguard . . . .” A coordinate (1972).2 Judge it is that the A recital of the evident facts principle, applica- after prompted sоlely by background provide for expository an study thought. tion industry holdings. our At the suit Kanawha Indeed, that he he had appears it believed the Federal Operators Coal Association Dis- by way no course. decision is other Our Charleston, Virginia, trict Court West conflicting the two an accommodation of August temporary issuеd a re- *3 persuasions. the United Mine straining against order 17, America, designed District Workers of repeated and is emphasized Now of a wildcat strike. prevent to continuation the limited to our determination effect, on August While the order others, case. Among of this circumstances 24, 1975, rally members union Bruce a contеmplate it does not the contin notably, purportedly Miller and Delano advo- being only the Louis gency reporter of the sole or strike. A competent begin prolongation to an To cated of the hear- witness incident. with, the reporters nature, had ing, it is conceded civil in was held before the knowledgе 8, 1975, not acquired through their con September District as- Judge, Further, the in fidential communications. Delano certain Miller and had whether have been adduced for the formation could breached the decree. Court’s testimony the of of through Court Gallagher and Rich- Appellants Andrew many not ac others. Our conclusion does Steelhammer, for reporters ard as the cord or privilege, qualified, a absolute Gazette, the rally Charleston had attended it is a Actually the reporter. testify were witnesses to and summoned as public. the calls for re Its interest here observed, to the seen they events had on judicial laying straint in thе of sanctions. Failing in contempt written of trial. at the product the of a Decision now is but both of subpoenas, the attempts quash balancing pro- of two vital considerations: response evidence give them refused the truth public by exacting tection counsel, interrogation by prosecuting public through prоtection of the versus no acknowledged that confi- although they first maintenance of free The con- Judge lips. dences The sealed their accomplished sideration could have been 8, September adjudged 1975 them “in lat- obstructing without fulfillment of the they] will be contempt of and [that by relieving ter — protest, Court, held until not to further order predicament calling of their and for exceed six months.” not situat- testimony similarly from others upon sentence adjudication An con- ed. Weighing in the scales favor of this compliance with avoidance of in- unnecessary tempt solution is its was entered in danger any potential 42(a) prescribing currence of of steriliz- provisions of F.R.Crim.P. ing items. newsworthy the sources The accused con- requisites therefor. Moreover, would, feel, course we temnors, noted, declined to as heretofore square Judge’s with the understandable the Court’s despite cleanse sev- themselves conception duty, of his for sеarch of the to do so. Mean- them eral invitations for the truth not Court for be thwarted. respond- had while several other Gallagher questions ed the same
To we make these decisions have steered refused to answer. These Steelhammer had by highest tenor the terms and they are are the Branzburg v. whole facts рronouncements court’s 92 dispute. 408 U.S. S.Ct. 33 judicial U.S.-, L.Ed.2d-(1976) Because this case does involve 49 96 S.Ct. or, proceedings publication Supe- ban as of court in Rosato v. its or of denials of certiorari supra, reporters noted involve a reliance County,-U.S.-, rior Court of Fresno 96 upon protect confidential sourcеs (1976) and Farr S.Ct. 48 L.Ed.2d- information, no discussion is now included - Pitchess, -, U.S. 96 49 Supreme opinion Court in Nebraska (1976). L.Ed.2d- Ass’n, Stuart, al.,- Judge, Press et al. v. et Co., 629, 632-633, T. us mention was W. Grant In before this case. came (1953). made of mootness of 97 L.Ed. whether the about in discussion contempt will be judgments was criminal or charged appellants to the VACATED. civil, and it to be They civil. аverred strikers, against since the citations i. e. Delano, not still pending,
Miller and
were
(dissenting):
Judge
WINTER, Circuit
them
no
remained for
to ab
opportunity
majority’s
from the
dissent
respectfully
Hence,
insist,
solve themselves.
holding.
longer outstanding.
conviction is no
Shilli
States,
tani v. United
it is conceded that
case
In the instant
1531, 16
pros
L.Ed.2d 622
acquire the information
did not
disagrees.
pro
ecution
It characterizes the
a confi
them on
be elicited from
sought to
criminal,
ceeding
relying on
Shillitani’s
basis;
(Steelhammer)
one of them
dential
*4
explanation
contempt judg
that a criminal
My study
in the district court.
so testified
may
redemp
ment
also include like interim
even a scintil
up
of
fails to turn
the record
civil contempt.
tion conditions as in
In
were sub
reporters
la of evidence that the
deed,
said,
initially
it is
of a civil
pursuit
to embarrass
poenaed to harass them or
371,
contempt course is favored.
Id. at
fn.
at
future
abilities
newsgathering
9,
1531;
Wilson,
86
v.
S.Ct.
United States
might hold.
miners
public meetings that the
309, 316,
1802,
421
95
44
U.S.
S.Ct.
thаt,
in the bal
It
to me
therefore seems
too,
(1975). Seemingly,
186
in either type
by Mr. Justice
suggested
of interests
ancing
counsel
may appoint
in Branz
concurring opinion
Powell in his
it,
prosecute
and here the United States
665, 709, 92 S.Ct.
408
burg
Hayes,
U.S.
designated
to do
Frank
Attorney
so.
v. 2646,
(1972), the absence of a
33 LEd.2d 626
States,
(10
1967),
from
for if
suppose
journalists
be denied
they
voluntarily
they
did
wоuld be ac-
so—
—
meetings
admission to secret
on a confiden
of attempting
cused
to influence the out-
tial basis because of the outcome of this
party
come
favor of the
whom their
case which
involve
does not
confidential
testimony helped,
subject
and could be
to a
observations,*
communications or
even if
suit for the tort of maintenance. While
the miners
to close future
conclude
meet
this situation appears strange today, it is
along
ings
journalists,
with other outsid
readily
more
if
understandable
it is recalled
ers generally,
any legal
I do not think that
jurors
that generally
and witnesses were
rights
journalists
would be
violated.
persons.
the same
course,
Of
seize
upon
Supreme
in Branzburg
Court’s statement
however,
became apparent,
at
S.Ct. at
fact-finding process suffered because of the
gathering
that “news
is not without
its
unwillingness
potential
witnesses with
First
protections”
support
Amendment
relevant
information to make themselvеs
argue
have a
position, and
available out of
being
fear of
accused of
first
present
amendment
to be
and to
Thus,
maintenance.
the concept of testimo-
report
But,
what transpires.
whatever the
compulsion
nial
was evolved to solve the
implications
Branzburg
dictum may
problem,
maxim,
according to the
“what a
*5
been,
have
qualified
light
must be
man
by compulsion
does
of law cannot be
Procunier,
of Pell v.
called maintenance.”
Wigmore,
See VII J.
(1964).
case,
violation of the first amendment. Presum- The First and Fourteenth Amendments ably, this action by would be taken government interfering bar frоm miners in order to more render difficult the way with a free The Constitution coal operators’ obtaining not, task in witnesses however, government to require does * my 501, they prerequisites In view the should to the establish- be afforded a common law privilege against ment of a disclosure of com- testify litigation not in civil be- Wigmore, munications set forth in VIII J. Evi- private parties. prolong tween I do not this dence, (1961) apply § 2285 at 527 should opinion by developing point. reporters. Under Federal Rules of Evidence access to informa- press special accord the of the public NORFOLK, members
tion not shared AND CAROLI- BALTIMORE thing say jour- INC., It is one LINES, Liberty generally. Mutuаl NA sources of infor- Company, Petitioners, nalist is free to seek out Insurance members of the mation available to not is entitled to some general public, that he DIRECTOR, OF WORKERS’ OFFICE confiden- protection constitutional PROGRAMS, UNIT- COMPENSATION Branzbarg v. sources, tiality of such cf. LA- DEPARTMENT OF ED STATES government can- supra, and Respondents. al., BOR et of news ema- рublication restrain the No. 75-1896. Cf. New York nating such sources. from Times Co. States United [403 Appeals, States supra. It is 822] Fourth Circuit. suggest quite thing another Argued April upon government imposes Constitution duty the affirmative to make available to 6, 1976. Aug. Decided of information not sources the public gener- available to members of
ally. support finds no proposition That
the words of the Constitution or Accordingly,
deсision since of this Court. prison regulation California at
[the issue] press
does not access to sources deny
of information available to members of general public, we hold that it does that the First abridge protections guarantee. Amendments
and Fourteenth 834-35,
While *6 above,
majority’s forth I holding set majority
record that I do think that addressing my
correct the merits. To
mind the proceeded district court civil
contempt. While the case is thus moot in
the sense that have lost the themselves,
ability purge their conten- point
tions raise an important difficult
advance appellate at the level before moot- likely again
ness ensues and to arise
continuing litigation over the coal strike
and other agree matters. therefore
wholeheartedly that the case falls within a recognized exception
well to the mootness
doctrine.