461 S.W.2d 345 (Ky. 1970), Branzburg v. Pound

Citation:461 S.W.2d 345
Opinion Judge:VANCE,
Party Name:Paul BRANZBURG, Petitioner, v. J. Miles POUND, Judge, Jefferson Circuit Court, Criminal Branch, SecondDivision, Respondent.
Attorney:Edgar A. Zingman and Robert C. Ewald, Wyatt, Grafton & Sloss, Louisville, for petitioner., Edwin A. Schroering, Commonwealth's Atty., Carl C. Ousley, Jr., First Asst. Commonwealth's Atty., Louisville, for respondent.
Case Date:November 27, 1970
Court:Court of Appeals of Kentucky

Page 345

461 S.W.2d 345 (Ky. 1970)

Paul BRANZBURG, Petitioner,

v.

J. Miles POUND, Judge, Jefferson Circuit Court, Criminal

Branch, SecondDivision, Respondent.

Court of Appeals of Kentucky

November 27, 1970

As Modified on Denial of Rehearing Jan. 22, 1971.

Edgar A. Zingman and Robert C. Ewald, Wyatt, Grafton & Sloss, Louisville, for petitioner.

Edwin A. Schroering, Commonwealth's Atty., Carl C. Ousley, Jr., First Asst. Commonwealth's Atty., Louisville, for respondent.

VANCE, Commissioner.

The petitioner, Paul Branzburg, a staff writer for the Louisville Courier Journal, produced an illustrated story entitled 'THE HASH THEY MAKE ISN'T TO EAT' which was published in the Courier Journal on November 15 1969 and revealed how a copious quantity of marijuana was converted into the more potent drug hashish for which a locally profitable and ready

Page 346

market impliedly existed. The story was based upon information acquired by the writer's observation during an interview granted to him upon a pledge that the identity of the two producers of hashish would not be revealed.

When summoned to appear before the Jefferson County Grant Jury ten days later, Branzburg refused to disclose the identity of the men. He was ordered to reappear before the grand jury and threatened with contempt penalties if he persisted in his refusal to answer the questions propounded. We stayed further proceedings until the intrinsically important legal issues presented could be given more consideration.

Marijuana (cannabis) is defined as a narcotic drug by statute, KRS 218.010(14), and unlicensed possession or compounding of such drugs is a felony punishable by both fine and imprisonment. KRS 218.210. Therefore Branzburg saw the commission of the statutory felonies of unlawful possession of marijuana and the unlawful conversion of it into hashish.

KRS 421.100 provides:

'No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.'

The petitioner concedes in his argument before this court that the general weight of authority is that there is no constitutional guarantee of the provilege he seeks, (see Garland v. Torre, 259 F.2d 545, Second Circuit, certiorari denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958)), and petitioner submits that the only question before this court is the meaning of the words source of any information as used in KRS 421.100. 1

On behalf of the respondent, it is urged that source of information refers to an informant and that the statute was enacted to allow and to encourage a person having knowledge of matters which should be called to public attention to make those matters known without revealing his identity and without subjecting himself to the possibility of vengenance, retribution or bublic embarrassment which might be brought upon him by a revelation of his identity.

The petitioner, on the other hand, contends that source of information should be construed to mean all knowledge received by a newsman no matter what the source.

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He argues, in effect, that when a newsman observes something, the thing observed is itself the source of the information.

At the outset we observe that at common law no privilege existed in favor of communications made to newsmen. In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961); Brewster v. Boston Herald-Traveler Corp., D.C., 20 F.R.D. 416 (1957); 58 Am.Jur., Witnesses, Section 546; 97 C.J.S. Witnesses § 259, See Annotation 7, A.L.R. 3rd 591.

KRS 421.100 which grants a newsman the privilege against disclosing his source of information is therefore a statute in derogation of the common law. The rule that statutes in derogation of the common law should be strictly construed does not apply in Kentucky. KRS 446.080. Nevertheless some limitations by way of statutory construction have been placed upon statutes relating to privileged communications and it is elementary that a privilege which did not exist at common law cannot be asserted under a statute unless it is clear that the statute was intended to grant the privilege.

In construing KRS 421.210(4) relating to privileged communications to attorneys, the identity of one employing an attorney to return stolen merchandise was held not privileged because such employment of an attorney was not in his professional capacity. Hughes v. Meade, Ky., 453 S.W.2d 538 (1970). Communication made to an attorney in his professional capacity was nevertheless denied privilege when the person making the communication subsequently employed another attorney and sought to maintain a fraudulent action which would have been defeated by the disclosure of the alleged privileged communication. Fidelity-Phenix Fire Ins. Co. of New York v. Hamilton, Ky., 340 S.W.2d 218 (1960). Communications to an attorney of an intention to commit future crimes or frauds are not entitled to privilege under the statute. Cummings v. Commonwealth, 221 Ky. 301, 298 S.W. 943 (1927) and Standard Fire Ins. Co. v. Smithhart, (1919), 183 Ky. 679, 211 S.W. 441, 5 A.L.R. 972.

It is the opinion of this court that the language of KRS 421.100 granting immunity to a newsman from disclosing the source of any...

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