Matter of Contempt of Wright

SHEPARD, Justice,

dissenting.

The Court today fashions from thin air a new evidentiary privilege which effectively allows an amorphous, undefined class of persons to refuse to testify in court. The majority does not limit the privilege or tell us its extent. The majority postulates no rationale for its decision, other than the vague assertion that it is founded in freedom of the press.

The majority finds no agreement within itself as to the basis of its holding. Huntley, J., with whom Bakes, J., concurs, surmises that the privilege grows out of the federal constitution. Donaldson, C.J., and Huntley, J. suggest that the privilege arises from Idaho’s constitution. Bistline, J., plucks the privilege from the common law, where it has evidently slumbered unnoticed through the centuries.

The majority suggests that a successful assertion of the privilege will depend upon a “balancing” test, but I perceive that “balancing” as a thinly-veiled predicate for ad hoc decisions with no true legal foundation. Society and its system of criminal law will be ill-served by decisions which at bottom state, “it all depends,” “that’s different,” or candidly, “our inability to withstand pressure has foreordained the result, hence there is no importance to how we arrive at that result.”

There is only one conceivable rationale for the testimonial privilege created by the majority today, which rationale is that there is a constitutional protection of the freedom of the press; that such constitutional protection extends to the right of the press to not only disseminate news but to gather news; and that if a member of the press is required to testify in court regarding information obtained during news gathering, there will be a chilling effect on the freedom to publish news. That precise rationale was addressed and demolished by White, J., in Branzburg v. Hayes, 408 U.S. 665, 698-699 , 92 S.Ct. 2646, 2665 , 33 L.Ed.2d 626 (1972):

“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 *429 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.”

The Court went on to say, 408 U.S. at 702-703 , 92 S.Ct. at 2667 -2668:

“If newsmen’s confidential sources are as sensitive as they are claimed to be, the prospect of being unmasked whenever a judge determines the situation justifies it is hardly a satisfactory solution to the problem. For them, it would appear that only an absolute privilege would suffice.

“We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination.”

The problem of exactly who constitutes the “press” and to whom the testimonial privilege will be extended was also pointed out in Branzburg as a factor requiring the rejection of the asserted privilege. The Court stated, 408 U.S. at 703-704 , 92 S.Ct. at 2668 :

“The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photo composition methods.”

The Oregon Supreme Court in State v. Buchanan, 250 Or. 244 , 436 P.2d 729, 731-732 (1968), put it as follows:

“Apart from the definitional difficulties in attempting to give constitutional status to a privilege for qualified news gatherers which presumably would be denied to less favored classes, there is another objection to discrimination between news gatherers and other persons. Such a practice would be potentially destructive of the very freedom that is sought to be preserved by this appeal. After the lessons of colonial times, the First Amendment required the federal government to resist the normal temptation of rulers to regulate, license, or otherwise pass upon the credentials of those claiming to be authors and publishers. An invitation to the government to grant a special privilege to a special class of ‘news gatherers’ necessarily draws after it an invitation to the government to define the membership of that class. We doubt that all news writers would want the government to pass on the qualifications of those seeking to enter their field.

******

“Assuming that legislators are free to experiment with such definitions, it would be dangerous business for courts, asserting constitutional grounds, to extend to an employe of a ‘respectable’ newspaper a privilege which would be denied to an employe of a disreputable newspaper; or to an episodic pamphleteer; or to a free-lance writer seeking a story to sell on the open market; or, indeed, to a shaggy nonconformist who wishes only to write out his message and nail it to a tree. If the claimed privilege is to be found in the Constitution, its benefits cannot be limited to those whose credentials may, from time to time, satisfy the government.”

Simply stated, there is no coherent or reasonable rationale for the decision of the majority. The majority’s creation of a new privilege is fraught with danger and uncertainty as to what persons will be permitted to assert the privilege and under what circumstances the assertion of the privilege will be sustained. As will be discussed below, there is no basis in the federal constitution, the State constitution, or the common law for the creation of such a privilege. Hence, I dissent. Our courts do not belong to the judges, the lawyers, the *430 press, or any other class, but rather they belong to the people and serve as a forum wherein truth can be learned and rights can be vindicated. It is truly a sad day when, in the name of “the people’s right to know,” a barrier is erected which will prevent the people and its courts from learning the truth.

The majority finds support for its creation of a qualified federal constitutional privilege in Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972). No matter how one may attempt to interpret Branzburg , the opinion of the Court of four Justices, specially concurred in by a fifth, states, 408 U.S. at 689-690 , 92 S.Ct. at 2661 :

“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.”

However much my brethren might wish that Branzburg had created the privilege asserted by the majority today, Branzburg simply does not do so. See also United States v. Nixon, 418 U.S. 683 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974), in which the Court held that every citizen, including the President of the United States, has a duty to appear and testify in the courts of the people.

As stated by Judge Sirica in United States v. Liddy, 354 F.Supp. 208, 214 (D.D. C.1972):

“There can be little dispute that the common law recognized no privilege which would support a newspaper or reporter in refusing, upon proper demand, to disclose information received in confidence. Such a privilege, if it exists, must grow out of the First Amendment free press guarantee. Quite appropriately, in this Court’s view, the Supreme Court has recognized as component parts of that guarantee the freedom to publish without prior governmental approval, a right of circulation, freedom to distribute literature, and the right to receive printed matter. And most recently with the Supreme Court’s decision in Branzburg , it may be said that a right to gather news has been explicitly acknowledged. While acknowledging this corollary right, however, the Court rejected the claim that such a right implies a privilege to protect the identity of news sources. After citing numerous cases in which restrictions on the right to gather news have been sustained, the Court classified the requirement to answer subpoenas and disclose sources as another instance of permissible restriction.”

Accord Tofani v. State, 297 Md. 165 , 465 A.2d 413 (1983); Georgia Communications Cory. v. Horne, 164 Ga.App. 227 , 294 S.E.2d 725 (1982); Com. v. Corsetti, 387 Mass. 1 , 438 N.E.2d 805 (1982); Newbum v. Howard Hughes Med. Inst., 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); Ammerman v. Hubbard Broadcasting, Inc., 91 N.M. 250 , 572 P.2d 1258 (App.1977), cert. denied, 436 U.S. 906 , 98 S.Ct. 2237 , 56 L.Ed.2d 404 (1978); Caldero v. Tribune Pub. Co., 98 Idaho 288 , 562 P.2d 791 , cert. denied, 434 U.S. 930 , 98 S.Ct. 418 , 54 L.Ed.2d 291 (1977). See also Gagnon v. Dist. Court In & For Cty. of Fremont, 632 P.2d 567 (Colo.1981) (treating the issue of whether newsgatherer’s source should be compelled disclosed as a question of relevance under civil procedure Rule 26(b)(1)).

I turn now to the assertion by two members of the majority that the Idaho Constitution provides a bulwark behind which certain persons may hide and refuse to testify in court. Those two members of the Court do not inform us as to why a different result follows when viewing the Idaho Constitution than that which is reached in interpreting the federal constitution. My only conclusion is that they view the decisions of the United States Supreme Court as foreclosing the federal constitution as a source of a privilege, but since the *431 result is foreordained, they seize upon the Idaho Constitution as a convenient vehicle by which to obtain the desired result. Such, of course, ignores the previous decisions of this Court.

In Caldero v. Tribune Pub. Co., 98 Idaho 288 , 562 P.2d 791 , cert. denied, 434 U.S. 930 , 98 S.Ct. 418 , 54 L.Ed.2d 291 (1977), the Court held that no privilege in an absolute or qualified form existed by reason of either the federal or the Idaho Constitution. The Court stated, 98 Idaho at 294 , 562 P.2d at 797 :

“[0]ur reading of Branzburg v. Hayes ... is to the effect that no newsman’s privilege against disclosure of confidential sources founded on the First Amendment exists in an absolute or qualified version. The only restrictions against compelled disclosure appear to be in those cases where it is demonstrably intended to unnecessarily harass members of the news media on a broad scale by means having an unnecessary impact on protected rights of speech, press or association.”

That language of Caldero was couched in the context of a civil libel case. Its language is even more compelling when viewed in the context of today’s case, i.e., a Branzburg type criminal proceeding in which the rights of society are sought to be vindicated and pursued by the enforcement of criminal sanctions for the violation of statutes enacted by the people.

The result of Caldero was affirmed in Sierra Life Ins. v. Magic Valley Newspapers, 101 Idaho 795 , 623 P.2d 103 (1981), a decision wherein Bistline, J., writing for the majority, stated, 101 Idaho at 800 , 623 P.2d at 108 , “[T]he holding in Caldero and its application to the facts of this case [are] of concern. 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).” In Sierra Life, a newspaper libel defendant had asserted “that the initial error here was in the trial court’s order directing the defendants to reveal their confidential sources, and that a correct ruling at that point would have avoided placing the court in the ensuing situation which resulted in the imposition of sanctions.” 101 Idaho at 800 , 623 P.2d at 108 . Thus, the Court in Sierra Life, although reversing for what it perceived to be overly harsh sanctions, did not modify Caldero .

Most recently, in Marks v. Vehlow, 105 Idaho 560 , 671 P.2d 473 (1983), the Court drew a parallel to Branzburg and rejected the assertion of a newsman’s privilege to refuse to appear and testify. That opinion was cast in the context of a newsman’s refusal to supply information pertinent to the location of a kidnapped child. Donaldson, C.J., writing for the majority, stated:

“Because we find a compelling and legitimate governmental interest in assuring the efficacy of the writ of habeas corpus, we hold that here there is no qualified newsman’s privilege beyond the usual inquiry concerning relevance and materiality of the information sought. Furthermore, we believe that the obligation to attend and to give testimony in a habeas corpus proceeding wherein liberty interests are determined is at least as compelling as the duty to appear before a grand jury, Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972); cf. Matter of Farber, 78 N.J. 259 , 394 A.2d 330, 334 (obligation to appear on behalf of a criminal defendant as compelling as duty to appear before a grand jury), cert. denied, 439 U.S. 997 , 99 S.Ct. 598 , 58 L.Ed.2d 670 (1978). The concealing of information or the identities of informants which could lead to the discovery of a person sought by means of habeas corpus proceedings should be discouraged. We therefore decline to establish a specific newsman’s privilege with respect to such information.” 105 Idaho at 568-569 , 671 P.2d at 481-482 .

The majority postulates no rationale why it departs from the previous decisions of this Court. As the press is viewed from a national perspective in Branzburg , so also I view the press in Idaho. I do not find the press in this State to have been in the past *432 the craven tool of government, of the courts, or of special interests groups. I do not find that its vigor, assertiveness, or dedication to the public’s right to know has in any way been diminished or hamstrung, by the previous decisions of this Court. Under our constitution, as it has been interpreted, the press within the State of Idaho may be many things. At times it is accused of being arrogant, abrasive, and overly intrusive. At other times its critics suggest bias in its reporting of the news or outrageousness in its editorial opinion. Whatever its virtues or its faults, no one appears to argue its dedication and ability to inform the public. Nor do any of its critics suggest that the press in Idaho lies supine under the heel of authority. Simply put, the assertions of the majority of dangers to- the press are overblown, nonexistent, and ignorant of the teachings of history.

Appellant also argues, and Bistline, J., apparently agrees, that this Court should exercise its authority to create a common law privilege which insulates certain persons from the usual mandate of the law to appear and give evidence in the courts on the grounds that “it is indisputable that in light of present day society there does exist in the common law a qualified journalistic privilege.” To suggest, as does Bistline, J., that the common law is dynamic and capable of growth, evolution, and adaptation is only to posit that such privilege has not existed in the common law, and that the common law should be changed to accommodate the need for such a privilege. The whole basis of the common law is its effort to resolve disputes by determining where the truth might lie.

Privileged communications during the past hundreds of years have been recognized, but each has been bottomed on a clearly enunciated and understood rationale. At common law, a privilege was recognized for communications between spouses during marriage, 1 for disclosures by clients to their attorneys, 2 and for military and diplomatic government secrets. 3 There appears to have been no privilege at common law as to information obtained as a result of a physician-patient relationship, 4 and while priest-penitent privilege was discussed in early cases, Wigmore has concluded that the privilege was not established or accepted by common law. 5

Beyond those enunciated testimonial privileges, judicial creation of other privileges is disfavored because such evidentiary privileges preclude reliable evidence from being placed before the court, and the search for truth is thereby obstructed. Caldero v. Tribune Pub. Co., 98 Idaho 288 , 562 P.2d 791 , cert. denied, 434 U.S. 930 , 98 S.Ct. 418 , 54 L.Ed.2d 291 (1977).

Beyond judge-made privileges, legislative enactments have created, recognized, or defined certain privileges. See, e.g., I.C. § 9-203(1) (interspousal communications); I.C. § 9-203(2) (attorney-client communications); I.C. § 9-203(3) (confessions made to clergy); I.C. § 9-203(4) (information ac *433 quired by virtue of the doctor-patient relationship); I.C. § 9-203(5) (official confidences made to a public officer); I.C. § 9-203(6) (communications between school counselor and student); I.C. § 9-203(7) (parent-child communications); I.C. § 54-2314 (psychologist-client secrets); I.C. § 54-3410 (1982) (disclosures between professional counselor and client); I.C. § 54-3213 (consultations with social workers); I.C. § 39-1392b (hospital records). Those privileges have presumably been debated and resolved in the hard light of legislative policy decisions wherein duly elected representatives of the public, selected for their ability to make policy decisions, considered the pros and cons.

As noted by the majority opinion, some states have enacted statutes which, to varying extents and under certain circumstances, insulate the press from testimonial requirements. Our legislature has not seen fit to enact such a statutory privilege. Indeed, there appears substantial debate among the membership of the press as to the desirability of enactment of such “shield laws.” Substantial numbers of the press hold to the view that such shield legislation is a subjugation of the press to the legislative branch of government, and that what the legislature giveth, it may at another day take away. Most thoughtful members of the press suggest that disclosure or nondisclosure is and should be a matter of individual conscience. Others suggest that it is within the realm of ethics of a profession. Those who argue ethics, of course, are also among the first to argue that the membership of the press is not restricted to any orthodox or recognizable class, nor is it to be licensed by the government as are doctors or lawyers. Hence, there can be enforced no journalistic code of ethics, nor can a breach thereof be punished, since no authority exists over members of the so-called class. When one views the need for adaptation of the common law to create the asserted privilege, it appears that the inability to fashion extents and limits, the failure to demonstrate otherwise adverse results, and the need of society to discover truth in its court proceedings, all militate against the creation of the asserted privilege.

Our rules of civil procedure and our retention of sanction powers traditionally exercised by our courts adequately shield witnesses, including reporters, from undue harassment and vexation. Limitation or termination of examinations conducted in bad faith is authorized, I.R.C.P. 30(d), as are protective orders to prevent annoyance, embarrassment or oppression of any person during court proceedings, I.R.C.P. 26(c).

The instant case is cast in terms of a criminal prosecution. Information is being withheld which is allegedly of assistance to that prosecution. The alleged crime is not perhaps the most important, but it nevertheless involves proscribed criminal behavior. Society has a substantial interest in, and a right to, enforcement of its criminal statutes. Although Bistline, J., asserts a difference between the right of a defendant to secure information for his defense, and the right of society to secure information for effective prosecution, I disagree that such a distinction should be made. Today’s case involves a prosecution whose purposes and methods may be offensive to certain members of the press. Hence, there is a refusal to testify. Tomorrow’s case may involve the withholding of information potentially beneficial to a criminal defendant whose views or conduct may be equally offensive to certain members of the press. I respectfully suggest that there is no difference in the two cases, and that this Court, having created the privilege, must be equally willing to enforce it in either case, however distasteful the result.

Valid efforts to reduce violence and enforce statutes proscribing unlawful activity should not be thwarted by stretching of the common law or of the constitution solely to accommodate the special interests of criminal informants. At bottom, an orderly society depends upon vindication of its rights in the courts. The rights of individuals and society cannot be determined and protected by the courts, unless those courts are allowed to undiscriminatingly and fairly pur *434 sue the truth. I view today’s decision as an unnecessary and unjustified intrusion into our judiciary’s search for truth.

. Marital communications privilege: See 8 Wig-more on Evidence §§ 2227-2243 (McNaughton Rev.1961); McCormick on Evidence, Chapter 9 (3d ed. 1984); Bell, Handbook of Evidence for the Idaho Lawyer, pp. 73-75 (2d ed. 1972). See also Shields v. Ruddy, 3 Idaho 148 , 28 P. 405 (1891) (marital privilege recognized by statute).

. Attorney-client privilege: See Later v. Haywood, 12 Idaho 78 , 85 P. 494 (1906); State v. Perry, 4 Idaho 224 , 38 P. 655 (1894); 8 Wigmore on Evidence §§ 2290-2329 (McNaughton Rev. 1961); McCormick on Evidence, Chapter 10 (3d ed. 1984); Bell, Handbook of Evidence for the Idaho Lawyer, pp. 71-73 (2d-ed. 1972).

. Government secrets: See 8 Wigmore on Evidence §§ 2367-2379 (McNaughton Rev.1961); McCormick on Evidence, Chapter 12 (3d ed. 1984); Penn Mutual Life Ins. Co. v. Ireton, 57 Idaho 466 , 65 P.2d 1032 (1937).

. Doctor-patient privilege: See Bell, Handbook of Evidence for the Idaho Lawyer, pp. 75-76 (2d ed. 1972); 8 Wigmore on Evidence §§ 2380-2391 (McNaughton Rev.1961); McCormick on Evidence, Chapter 11 (3d ed. 1984).

. Priest-penitent privilege: See Angleton v. Angleton, 84 Idaho 184 , 370 P.2d 788 (1962) (decided on the basis of I.C. § 9-203); 8 Wigmore on Evidence §§ 2394-2396 (McNaughton Rev. 1961); McCormick on Evidence, p. 184 (3d ed. 1984); Bell, Handbook of Evidence for the Idaho Lawyer, p. 78 (2d ed. 1972).