Matter of Contempt of Wright

DONALDSON, Chief Justice,

specially concurring.

While I am in basic agreement with the majority opinion, I must express the following reservations. First, the majority grounds its decision on the United States Constitution and the Idaho Constitution. In my opinion it is error to ground the decision on the United States Constitution. After Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972), the federal constitutional status of the news-person’s privilege is anything but clear. See, e.g., Herbert v. Lando, 441 U.S. 153 , 99 S.Ct. 1635 , 60 L.Ed.2d 115 (1979); New York Times Co. v. Jascalevich, 439 U.S. 1331 , 99 S.Ct. 11 , 58 L.Ed.2d 38 (1978); New York Times Co. v. New Jersey, 439 U.S. 997 , 99 S.Ct. 598 , 58 L.Ed.2d 670 (1978).

Instead, relying on the United States Supreme Court’s invitation in Branzburg for state courts “to [respond] in their own way and [construe] their own constitutions so as to recognize a newsman’s privilege, either qualified or absolute,” ( 408 U.S. at 706 , 92 S.Ct. at 2669 ) I would ground this decision wholly on Art. 1, § 9 of the Idaho Constitution. Art. 1, § 9 provides that “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.” Our own state constitutional history concerning the intent of the drafters of this section is sparse. See Constitutional Convention Proceedings, Vol. I, at 279-81; Vol. II, at 1594-95, 1636-37. However, in construing a nearly identical provision, the Supreme Court of California noted that

“[t]he quoted position is an almost exact duplicate of Art. VII, § 8 of the New York Constitution of 1821. Substantially the same language is found in the constitutions of 43 states. Chafee, Free Speech in the United States, p. 5, n. 2. The remaining states have a shorter guarantee similar to that in the United States Constitution, in which the ‘abuse’ exception has been necessarily implied.” Werner v. Southern California Associated Newspapers, 35 Cal.2d 121, 123 , 216 P.2d 825, 827 (1950).

The court concluded that this provision’s “primary purpose is to guarantee that freedom of speech shall not be restrained ex *424 cept to prevent abuse.” at 123, Id. 216 P.2d at 827 .

Therefore, any analysis under this section will necessarily involve a balancing of competing claims. As I explained in my dissent in Caldero v. Tribune Pub. Co., 98 Idaho 288, 298 , 562 P.2d 791, 801 (1977), cert. denied, 434 U.S. 930 , 98 S.Ct. 418 , 54 L.Ed.2d 291 (1977), the interest in maintaining a robust freedom of speech must be balanced against whatever interest is asserted as justifying the impairment of free speech. The balance, however, is weighted in favor of free speech in that the competing interest must be “compelling” or paramount. While the State’s interest in compelling disclosure of confidential sources which may lead to the prosecution of crime may be great, “[wjhether a court should require disclosure in the individual case will depend upon the facts of the case. Disclosure cannot be dictated in the abstract. The issue must be resolved on a case-by-case basis....” Caldero, supra, at 305 , 562 P.2d at 808 . To assist a court in making such a determination, I suggested an approach which balances the availability of alternate sources, the relevancy of the material sought and the critical import of that information. Id. at 304 , 562 P.2d at 807 .

I have consistently maintained this position in the privilege cases subsequent to Caldero . In Sierra Life Ins. v. Magic Valley Newspapers, 101 Idaho 795 , 623 P.2d 103 (1981), I joined the majority opinion which stated: “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. ” Sierra Life, supra, at 801 , 623 P.2d at 109 . This statement implies that further questions, for example, materiality and exhaustion of other sources, are appropriate when considering whether confidential sources must be revealed. In Marks v. Vehlow, 105 Idaho 560 , 671 P.2d 473 (1983), I wrote for the majority which recognized the existence of a qualified privilege by quoting the above language from Sierra Life, by finding a compelling justification for the disclosure and by citing my dissent in Caldero as authority for the proposition that the trial court must determine relevancy and materiality of the information sought. Additionally, that opinion specifically limited its holding, finding no privilege, to the specifics of that case.

My second reservation with the majority opinion concerns the procedures for determining whether the privilege applies in a given case. The. newsperson in this case, Jim Wright, claims that his constitutional due process rights entitle him to a separate hearing to determine his privilege claim. The majority opines that “our trial judges are well qualified to select the procedure to fit the circumstances.” Then, the majority remands the case to the trial court for appropriate proceedings consistent with the opinion leaving it unclear whether Wright is entitled to a separate hearing. My interpretation of “proceedings consistent with the opinion” is that Wright is not constitutionally entitled to a separate hearing but rather is only entitled to that procedure selected by the trial judge to fit the circumstances.

Accordingly, I concur in that part of the opinion that rests its decision on ID. CONST, art 1, § 9 and that remands the case to the trial court to apply the test set out by the majority in a procedure selected by the trial court.

BISTLINE, Justice,

specially concurring.

I.

While I agree with Justice Huntley that under the United States and Idaho Constitutions there does exist a newsperson’s qualified privilege not to disclose confidential sources, we need not have reached this conclusion, for there is also a common law privilege eo-extensive to the constitutional privilege announced by the Court today.

It is a fundamental principle of law that when a court can decide a case on non-constitutional grounds, it should do so. State v. Hightower, 101 Idaho 749, 757 , 620 P.2d *425 783, 791 (198Ó); Erickson v. Amoth, 99 Idaho 907, 910 , 591 P.2d 1074, 1077 (1978). We can and should do so here.

The common law, so far as it is not inconsistent with the constitutions and laws of either the United States or Idaho, is the law of this state. I.C. § 73-116. It is judge-made law based upon reason and common sense. The common law is not immutable; rather, it is “a flexible legal system capable of expansion and change necessary to meet new and changed problems and conditions, or to meet a new or altered public policy evolving from such changed conditions in an expanding and developing social order.” Good v. Good, 79 Idaho 119, 124 , 311 P.2d 756, 758-59 (1957). See also Senear v. Daily Journal-American, 97 Wash.2d 148 , 641 P.2d 1180, 1182 (1982) (“Common law is not static.”); Funk v. United States, 290 U.S. 371, 383 , 54 S.Ct. 212, 216 , 78 L.Ed. 369 (1933) (“It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.”)

Thus, when a case is not governed by statutory law, as is true in this case, it is this Court’s duty to then apply the common law in light of present-day society to determine the outcome of the case. Accordingly, it is to the common law I turn.

II.

The concept of privileges arose in England in the 1600’s. It developed only after witnesses could be compelled to testify. In England prior to the fifteenth century the concept of a witness was non-existent, for the jury served both as trier of fact and witness. 8 J. Wigmore, Evidence in Trials at Common Law § 2190, at 62 (McNaughton rev. ed. 1960). This method proved inefficient, and over time the bifurcation of witness and jury duties developed. Id., pp. 63-65.

As the bifurcation of witnesses and juries occurred, new problems arose, the chief one being that there was no way for a court to require a witness to appear and ’give testimony. Id. This shortcoming was remedied by the Statute of Elizabeth in “which a penalty was imposed and a civil action was granted against any person who refused to attend (and testify) after service of process and tender of expenses.” Id.

This statute is the source of the maxim that “the public ... has a right to every man’s evidence.” Id., § 2192, at 70; see also Caldero v. Tribune Publishing Co., 98 Idaho 288, 291 , 562 P.2d 791, 794 (1977). It was after the statute was enacted and the possibility of testimonial compulsion became a reality that the concept of privilege arose. Sherman and Weiser, The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege, 60 N.C.L.Rev. 895, 904 (1982).

Originally, the basis for a privilege was in the notion of “honor among gentlemen.” 8 Wigmore, supra, § 2286, at 530. 1 The “honor among gentlemen” basis for privileges, however, was rejected in the 1776 case of Duchess' of Kingston’s Trial, 20 How.St.Trials 573 (1776), cited in McCormick on Evidence, § 98 at 212 (2d ed. 1972), in which the court refused to recognize a physician-patient privilege that was based simply upon the physician’s honor not to divulge his confidences. 2 A primary result of Duchess of Kingston’s Trial was that the “honor among gentlemen” basis for justifying a privilege was replaced by a stricter utilitarian standard based on strong policy grounds. 8 Wigmore, supra, § 2286, at 531.

*426 Based upon this stricter utilitarian standard, Professor Wigmore has formulated what he believes to be the four requirements for a privilege to be recognized at common law:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation. Id. § 2285, at 527 (emphasis original).

Many courts and commentators have accepted Wigmore’s test as the proper method for determining if a proposed privilege ought to be recognized. See, e.g., Senear, supra, 641 P.2d at 1182 ; Allred v. State, 554 P.2d 411, 417 (Alaska 1976); Slovenko, Psychiatry and a Second Look at the Medical Privilege, 6 Wayne L.Rev. 175, 184-99 (1960). It must always be remembered, however, that proper application of this test depends upon a correct understanding of the reason for privileges, which is “that in the balance of human liberty, more is achieved by safeguarding certain relationships from state molestation than is lost through the resulting impediment to the fact finding process.” Louisell and Sinclair, Forward: Reflections on the Law of Privileged Communications, 59 Cal.L. Rev. 30, 53-54 (1971).

III.

Applying Wigmore’s test, it is indisputable that in light of the needs of present-day society there does exist in the common law a qualified journalistic privilege.

Wigmore’s first two requirements — confidence that a communication will not be disclosed, and that this confidentiality is essential to the maintenance of the relation between the parties — are normally present to justify recognition of a journalistic privilege. They certainly are present in this case.

Wigmore’s third requirement, while perhaps in prior times unsatisfied, is met in today’s world. The role of “an untrammeled press as a vital source of public information,” Grosjean v. American Press Co., 297 U.S. 233, 250 , 56 S.Ct. 444, 449 , 80 L.Ed. 660 (1936), in today’s world is of upmost importance. Today's society is complex and diverse, and the need for citizens to receive adequate information in order to make considered, reasonable decisions within the democratic process is crucial:

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. Zerelli v. Smith, 656 F.2d 705, 709, 711 (D.C.Cir. 1981), as quoted with seeming approval by the majority in Marks v. Vehlow, 105 Idaho 560, 568 , 671 P.2d 473, 481 (1983).

True today, too, is the increasing reliance the citizenry places upon the media and journalists in particular as sources of information. Accordingly, the confidential relationship between journalist and informant is one today that ought to be “sedulously fostered.”

Wigmore’s fourth requirement is interrelated to the third requirement set out above. The compelling interest at stake is the interest in allowing the press unfettered access to sources of information in order that the citizenry may become better informed about what is happening around them. This interest is extremely important. It was James Madison who said: “A popular government, without popular infor *427 mation or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both____ And a people who mean to be their own governors must arm themselves with the power knowledge gives.” Letter by James Madison to W.T. Barry, August 4, 1822, found in 9 Writings of James Madison 103 (G. Hurst ed. 1910).

The resultant injury from having a poorly informed public is inestimable. Professor Alexander Meiklejohn points this out well:

Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information, or opinion, or doubt, or disbelief, or criticism, which is relevant to that issue, just so far this result must be ill-considered, ill-balanced planning for the general good. A. Meiklejohn, Political Freedom: The Constitutional Powers of the People 27 (1960).

Accordingly, the injury from failing to recognize a common law journalist privilege would be greater than the benefit gained by requiring testimony in all instances. Senear, supra, 641 P.2d at 1183 . This is especially true in light of the fact that the privilege to be recognized is a qualified privilege, which will not always attach in every single case. Applying Wigmore’s four-part test, it is readily apparent that a common law journalist privilege exists and should be so recognized in Idaho.

IV.

I concur with the Washington Supreme Court’s determination that, although a journalist’s privilege does exist at common law, it is a qualified one that can be defeated if certain conditions are met:

First, there must be a showing that the claim is meritorious; i.e., it must not be frivolous or brought for the purpose of harassing the reporter. Branzburg v. Hayes, 408 U.S. 665, 710 , 92 S.Ct. 2646, 2671 , 33 L.Ed.2d 626 (1972) (Powell, J., concurring); Winegard v. Oxberger, supra [ 258 N.W.2d 847 (Iowa 1977) ].

Second, the information sought must be necessary or critical to the cause of action or the defense pleaded. It must, as was stated by Judge (later Justice) Potter Stewart, go “to the heart of the plaintiff’s claim”. Garland v. Torre, 259 F.2d 545, 550 (2d Cir.), cert. denied, 358 U.S. 910 , 79 S.Ct. 237 , 3 L.Ed.2d 231 (1958). See also Carey v. Hume, 492 F.2d 631, 636-37 (D.C.Cir.), cert. dismissed, 417 U.S. 938 , 94 S.Ct. 2654 , 41 L.Ed.2d 661 (1974); Zerilli v. Smith, 656 F.2d 705 , 7 Media L.Rptr. 1121, 1127 (D.C.Cir.1981); Baker v. F & F Inv., 470 F.2d 778, 783-84 (2d Cir.1972), cert. denied, 411 U.S. 966 , 93 S.Ct. 2147 , 36 L.Ed.2d 686 (1973).

Third, a reasonable effort must be made to acquire the desired information by other means. Even when the information is critical and necessary to plaintiff’s case, the plaintiff must exhaust reasonably available alternative sources before a reporter is compelled to disclose.

The values resident in the protection of the confidential sources of newsmen certainly point towards compelled disclosure from the newsman himself as normally the end, and not the beginning, of the inquiry.

Carey v. Hume, supra at 638 (concluding after balancing the interests that the reporter must disclose confidential sources); see also Riley v. City of Chester, supra [612 F.2d] at 717 [(3d Cir. 1979) ]; Baker v. F & F Inv., supra at 784. City of Chester, supra at 717; Baker v. F & F Inv., supra at 784. Senear, supra, 641 P.2d at 1183-84 .

Thus, whether the privilege will attach in a particular case will depend upon the facts of that case. Determining whether the privilege will apply should be done in an in-camera hearing before the district court.

Relating to the above three factors discussed in Senear , it should be noted that in criminal cases 3 a defendant’s right to a fair trial is a more compelling interest in favor of disclosure than a civil litigant’s *428 right. That is contrasted, however, to instances such as this case where it is the state seeking the information. While the state’s interest in acquiring information concerning criminal conduct is important, it is not so important as to justify allowing it to, in effect, require private parties in all instances to do the investigatory work it has the responsibility of doing by demanding, upon threat of fine or incarceration, information acquired by private parties through private efforts. One final note, a journalist should receive greater protection if he or she is not a party to the case.

V.

The common law is a dynamic body of law. It is not something etched in stone — a strait jacket immune to change. It is capable of growth, evolution, and adaptation. It should change as intellectual, societal, economic, and cultural conditions change.

Today’s world of democracy demands information as never before. It is that fact that leads to the inescapable conclusion that a common law journalist privilege does exist. I would accordingly so hold.

BAKES, Justice,

concurring specially:

I concur in the result reached by the majority opinion. As I stated in a dissenting opinion in Caldero v. Tribune Publishing Co., 98 Idaho 288 , 562 P.2d 791 (1977), “the First Amendment to the United States Constitution affords a newsman a limited privilege against disclosure of his news sources in some cases.” However, that qualified privilege exists solely by virtue of the interpretation placed upon the first amendment of the United States Constitution by the Supreme Court of the United States and other federal courts, and for no other reason. I disagree with the majority opinion in this case that such a privilege exists under Art. 1, § 9, of the Idaho Constitution, and also disagree that such a privilege existed at common law.

. For example, the attorney-client privilege arose out of an attorney’s honorable obligation not to disclose information confided by a client. Id., at 531.

. Mr. Chief Justice Mansfield said in part:

If a surgeon was voluntarily to reveal these secrets, to be sure, he would be guilty of a breach of honor and of great indiscretion; but to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever.

Id.

. The Washington Supreme Court in State v. Rinaldo, 102 Wash.2d 749 , 689 P.2d 392 (1984) held that there exists a common law privilege in criminal as well as civil cases.