Delaney v. Superior Court

BROUSSARD, J.,

Concurring.—

I.

I agree with the majority opinion’s conclusion that the information that defendant sought to elicit from the reporters in this case was “unpublished information” within the meaning of the California reporter’s shield provision. (Cal. Const., art. I, § 2, subd. (b).) I cannot join, however, in the opinion’s suggestion that it is either necessary or appropriate for the court, in reaching this conclusion, to rely solely on the “plain language” of the constitutional provision, without reference to the background or history of the constitutional provision or to the legislative history of the preceding statutory shield provision on which the constitutional provision was deliberately modeled.

*823 In County of Sacramento v. Hickman (1967) 66 Cal.2d 841 [ 59 Cal.Rptr. 609 , 428 P.2d 593 ], the defendant relied on an argument virtually identical to that embraced by the majority opinion, asserting that because the constitutional provision at issue in that case was “clear and unambiguous,” the court was required to confine itself to the “plain language” of the provision and could not consider the legislative history or judicial interpretation of a related statutory provision. (Id. at pp. 846-847.) In Hickman , this court— in a unanimous opinion—explicitly rejected the argument (id. at pp. 847-851), explaining that “ ‘[i]n the absence of contrary indication in a constitutional amendment, terms used therein must be construed in light of their statutory meaning or interpretation in effect at the time of its adoption.’ ” (Id. at p. 850 [quoting Michels v. Watson (1964) 229 Cal.App.2d 404 ( 40 Cal.Rptr. 464 )].) Thus, contrary to the suggestion of the majority opinion, Hickman as well as many other, more recent, cases (see, e.g., City of Sacramento v. State of California, ante, 51, 67, fn. 11 [ 266 Cal.Rptr. 139 , 785 P.2d 522 ]) make it clear that a court, in interpreting an initiative measure, may properly consider the statutory antecedents of the measure for any guidance those statutes may shed on the proper interpretation of the initiative provision.

In light of these authorities, I believe that it is clearly appropriate, in interpreting the constitutional reporter’s shield provision, to consider the entire background of the provision, including the legislative history and judicial interpretation of Evidence Code section 1070, the statutory provision on which the constitutional shield provision was based. In my view, both the language and history of the shield provision fully support the conclusion that the provision is not limited to an undefined category of “confidential” information, but rather applies to all “unpublished information.”

II.

Although the state constitutional shield provision extends to the information elicited from the reporters in this case, I agree with all of my colleagues that, under the facts of this case, application of the shield provision to afford the reporters a state-granted immunity from contempt would improperly infringe on the defendant’s federal constitutional rights. In light of the different approaches to the federal constitutional issue reflected in the majority opinion and Justice Mosk’s concurring opinion, however, I thought it appropriate briefly to explain my own views on this point.

The majority opinion and Justice Mosk’s concurring opinion are on common ground in concluding that, in a criminal case, a defendant’s federal constitutional right to a fair trial is implicated whenever a defendant dem *824 onstrates that there is a reasonable possibility that information that would assist his defense is being withheld by a reporter under the aegis of the shield provision. I, too, agree with that proposition.

The majority opinion and Justice Mosk’s concurring opinion diverge, however, with respect to the proper constitutional analysis that follows such a showing by the defendant. Justice Mosk’s concurring opinion concludes that once a defendant makes such a showing and demonstrates that no alternative sources for the information are available, the federal Constitution always requires the state shield provision to give way. The majority opinion, by contrast, concludes that when a defendant makes the threshold showing, the federal Constitution calls for a case-by-case weighing of the defendant’s relative need for disclosure of the information, on the one hand, against the relative strength of the state’s interest in permitting the reporter to withhold the information, on the other.

In general, I agree with the majority’s conclusion that, in determining whether the California shield provision may be constitutionally applied in a given case, it is appropriate to weigh a defendant’s relative need for the information in the particular case against the relative strength of the state’s interest in affording immunity under the circumstances of that case. 1 In determining the proper scope of federal constitutional rights in other contexts, numerous cases establish that federal constitutional guaranties are generally not absolute, and may, in appropriate circumstances, accommodate state laws which further a sufficiently compelling or important state interest. (See, e.g., Chambers v. Mississippi (1973) 410 U.S. 284, 295 [ 35 L.Ed.2d 297, 309 , 93 S.Ct. 1038 ] [“Of course, the right to confront ... is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.”]; Konigsberg v. State Bar (1961) 366 U.S. 36, 49-51 [ 6 L.Ed.2d 105, 116-117 , 81 S.Ct. 997 ] [“[W]e reject the view that freedom of speech and association ... as protected by the First and Fourteenth Amendments, are ‘absolutes’ .... [G]eneral regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. . . .”].) Particularly in view of a state’s traditional authority to establish evidentiary privi *825 leges to serve interests external to the adjudicatory process, it is difficult for me to see why the general principle permitting consideration of compelling state interests in the application of federal constitutional safeguards should not apply in this context as well. (Cf., e.g., United States v. Nixon (1974) 418 U.S. 683, 711-712 [ 41 L.Ed.2d 1039, 1066 , 94 S.Ct. 3090 ] [“In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President’s responsibilities against the inroads of such a privilege on the fair administration of criminal justice.”].)

Accordingly, in light of the important role a reporter shield provision may play in furthering a state’s compelling interest in fostering and preserving a free and vigilant press, I believe that even if a reporter’s “unpublished information” in a particular case may be of some assistance to the defense and there are no available alternative sources of the information, if a court finds that the defendant’s need for the information is not particularly great while the state’s interest in affording a reporter immunity under the circumstances is compelling, the court could properly conclude that the defendant’s federal constitutional right to a fair trial would not require the state shield provision to give way.

As the majority opinion demonstrates, however, on the facts of the present case it is clear that no such overriding, compelling state interest is present. Consequently, I concur fully in the majority opinion’s affirmance of the Court of Appeal judgment.

Lucas, C. J., concurred as to part I only.

The petition of real parties in interest for a rehearing was denied July 11, 1990.

Although in my view it would be wiser at this point to refrain from attempting to set forth an exhaustive list of specific “factors” that must be considered by a court in every case (see maj. opn., ante, at p. 813), the “factors” discussed in the majority opinion appear broad enough to permit a court to take into account all relevant considerations in “balancing. . . the defendant’s and newsperson’s respective . . . interests.” (See maj. opn., ante, at p. 809.)