Appeal of Goodfader, No. 4143

CourtSupreme Court of Hawai'i
Writing for the CourtBefore TSUKIYAMA; CASSIDY; LEWIS; MIZUHA; Murphy
Citation367 P.2d 472,45 Haw. 317
Decision Date03 November 1961
Docket NumberNo. 4143
Parties, 1 Media L. Rep. 2597 Appeal of Alan L. GOODFADER from Order Compelling him to Answer Questions on Deposition.

Page 472

367 P.2d 472
45 Haw. 317, 1 Media L. Rep. 2597
Appeal of Alan L. GOODFADER from Order Compelling him to
Answer Questions on Deposition.
No. 4143.
Supreme Court of Hawai'i.
Nov. 3, 1961.

Page 474

Syllabus by the Court

1. Freedom of the press under the First Amendment to the Federal Constitution rests on the assumption that the widest possible dissemination of information is essential to the welfare of the public and that a free press is a condition of a free society.

2. Freedom of the press under the First Amendment to the Federal Constitutional is not an absolute.

3. Notwithstanding the broad scope and protective status of the freedoms and privileges of the First Amendment to the Federal Constitution, none of them is absolute, and whether in any particular case as asserted right under that amendment should prevail or not depends upon weighing and balancing the protection afforded by the right asserted against the purposes that would be defeated or denied by recognition of the claimed freedom or privilege.

4. The freedom of press guarantee of the First Amendment to the Federal Constitution is not in itself sufficient to protect a newspaper reporter from being required in a judicial proceeding to divulge his confidential source of news.

5. Every person properly summoned is required to attend court and give his testimony unless specially exempted or privileged.

6. In the absence of statutory grant a newsman has no evidentiary privilege permitting him to refuse to disclose the source of information given to him in confidence.

7. In this jurisdiction a newspaper reporter called as a witness can not refuse to disclose the source of information given to him as a reporter in confidence on the ground that such communications are subject to an evidentiary privilege.

8. When a trial court is called on to rule whether or not to allow discovery by deposition in any particular case, or the extent to which the inquiry may extend, consideration should be given to all factors, including the effect the inquiry might have on the person to be interrogated.

9. When application is made to compel a newspaper reporter to answer questions on deposition which he had refused to answer on the grounds the information sought was given to him in confidence, one of the factors to be taken into account and weighed by the court in making its ruling should be the newsman's code proscribing disclosure of the source of news given to a reporter in confidence.

10. An application to the trial court to vacate an order compelling a witness to answer questions on deposition should be in writing stating the grounds therefor with particularity. H.R.C.P. Rule 7(b).

[45 Haw. 344] J. Russell Cades and Harold S. Wright, Honolulu (Smith, Wild, Beebe & Cades, Honolulu, of counsel), for deponent-appellant.

James H. Kamo and Hiroshi Sakai, Honolulu, for plaintiff-appellee.

Harriet Bouslog, Honolulu (Bouslog & Symonds, Honolulu, of counsel), filed a brief for Hawaii Newspaper Guild, Local 117, American Newspaper Guild, AFL-CIO, amicus curiae, but did not argue.

Page 475

[45 Haw. 317] Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS, and MIZUHA, JJ.

CASSIDY, Justice.

We are concerned on this appeal with the authority of a court to compel a newspaper reporter to divulge his source of confidential information.

Nesta M. Gallas, hereinafter referred to as the plaintiff, instituted an action in the court below against the members of the Civil Service Commission of the City and County of Honolulu, seeking her reinstatement as personnel director of the commission, from which position she had been discharged by a three-to-two vote of the members of the commission at a meeting held on December 16, 1957. It is alleged that the ouster was arbitrary and illegal. The gravamen of the complaint is that the chairman of the commission, Pedro N. Sanchez, and two members, Albert P. Moniz and Masao Watanabe, secretly contrived, conspired and agreed to oust plaintiff from her position and that pursuant to their agreement they [45 Haw. 319] summarily did so at the meeting of December 16, 1957, without granting her notice and an opportunity to be heard and without conferring with or granting the two remaining members of the commission, K. C. Choy and Elsie McG. Burke, an opportunity to deliberate on or discuss the dismissal. 1

Before issue was joined, the defendants, on June 26, 1958, took the deposition of appellant, Alan L. Goodfader, a reporter for a daily newspaper, who will hereinafter be referred to as the 'deponent.' In his deposition the deponent testified on direct examination that he attended the meeting of the Civil Service Commission on December 16, 1957, and that he had arranged to have a photographer there. When asked what had led him to call the photographer to attend the meeting he answered: 'I believed that an attempt might be made to fire Mrs. Gallas as Personnel Director.' He stated his belief was due to 'a combination of things,' including rumors he began to hear of friction between Mrs. Gallas and some of the commissioners, late in 1956. He said he also noted frequent disagreements between plaintiff and some of the commissioners, relating particular instances, and finally that, 'About a week and a half before Mrs. Gallas was fired, I received confidential information that an attempt to fire her was being considered.'

On cross-examination the deponent refused to disclose where or from whom he had obtained his information that there might be an attempt to dismiss the plaintiff. He stated: 'I'm not at liberty to divulge my source of information'; and as grounds for his refusal that: 'It would be a very grievous breach of my professional ethics for me to say anything which might lead back to my source.' [45 Haw. 320] He testified he checked the information and was unable to discover any leads to substantiate it but that he became convinced from circumstantial evidence 'there was some truth to it.' He also testified he 'became convinced that Mrs. Gallas knew nothing of it.'

On April 3, 1959, plaintiff filed a motion to compel deponent to answer the inquiry on the source of his information respecting her dismissal. A hearing was had on the motion on May 11, 1959. At the close of the hearing the court ruled in favor of the movant and directed her counsel to prepare an appropriate order. Under date of May 22, 1959, the court signed an order requiring deponent, after five days' written notice to defendants of time and place, to appear before the officer who had taken his deposition and answer the questions he had previously refused to answer. The record reveals that on the same date, that is, May 22, 1959, counsel for the plaintiff and for the deponent again appeared before the court and that one of deponent's counsel

Page 476

orally requested the court to reconsider its ruling on the motion to compel. The clerk's minutes indicate that the counsel informed the court he had understood, from a previous conversation with the judge, that the court would entertain such a motion but that the court stated it had understood associate counsel for deponent would file an order for an interlocutory appeal by that date in accordance with the court's prior advice that he could do so and that the court did not 'mean that as an invitation to reopen the matter.' The clerk's minutes further show that, after argument, the only ruling or direction of the court was to instruct counsel for plaintiff and deponent to collaborate on an order reserving the question to the supreme court, or if counsel were unable to agree to an acceptable order then the court would issue an order allowing an interlocutory appeal.

[45 Haw. 321] The order of May 22, 1959, compelling deponent to answer was filed on June 1, 1959. On the same date an order was entered allowing deponent ten days in which to take an interlocutory appeal from the order compelling him to answer. The interlocutory appeal has been perfected and in it appellant attacks the order compelling answer on grounds set forth in his specification of errors, as follows:

'1. The trial court erred in ordering deponent to divulge his confidential source of information relating to the administration of the government.

'2. The trial court's order compelling the deponent to disclose his confidential source of information concerning the doings or misdoings of a public official constitutes an unconstitutional abridgement of the freedom of the press guaranteed by the First Amendment of the United States Constitution and Section 3 of Article I of the Constitution of the State of Hawaii. 2

'3. The trial court erred in entering said order because the interest to be served by compelling disclosure of the deponent's source of confidential information under the circumstances here present does not justify any impairment of press freedom.

'4. The court erred in entering said order because public policy requires the safeguarding of such sources, at least in the absence of some even more compelling societal need.

'5. It was error for the trial judge to refuse to exercise judicial discretion and in holding that he had [45 Haw. 322] no discretion under Rule 30 but to compel deponent's testimony.'

We have been favored with thorough briefing by counsel for both the appellant and the amicus on the constitutional aspects of this case and are duly impressed by the citation of and the quotations from many of the landmark cases of the persuasive sweep intended to be given to the Federal Bill of Rights, generally, and with particular reference to the protection afforded by the privileges covered by the First Amendment. We cannot and do not ignore the force of the argument made on appellant's behalf in that respect. There can be no question but that each of the First Amendment freedoms and privileges is to be zealously protected against infringement. The particular freedom involved in this case, that of the press, is one of this...

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28 practice notes
  • Branzburg v. Hayes In the Matter of Paul Pappas, Petitioner. United States, Petitioner, v. Earl Caldwell. &#8212 85, 70 8212 94, 70 8212 57, Nos. 70
    • United States
    • United States Supreme Court
    • June 29, 1972
    ...since then although there are occasional dicta that, in circumstances not presented here, a newsman might be excused. In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961); In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963); State v. Buchanan, 250 Or. 244, 436 P.2d 729, cert. denied, 392 U.S. 905, 8......
  • The New York Times Co. v. Gonzales, No. 04 Civ. 7677(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 2, 2005
    ...that those few subpoenas issued usually ask the reporter to testify that his or her story was accurate). 40. Compare Appeal of Goodfader, 45 Haw. 317, 367 P.2d 472, 480-83 (1961) (declining to recognize an evidentiary reporter's privilege where no statutory authority for such a privilege ex......
  • Honda v. Ers, No. 23625.
    • United States
    • Supreme Court of Hawai'i
    • June 17, 2005
    ...Lindeman v. Raynor, 43 Haw. 299, 301; Clark v. Worrall, 146, Mont. 374, 379-81, 406 P.2d 822, 825. As stated in In re Goodfader's Appeals, 45 Haw. 317, 343, 367 P.2d 472, 487, "It is clearly the obligation of counsel in any case to see to it that his objections to or grounds for action are ......
  • Senear v. Daily Journal American, No. 7284-6-I
    • United States
    • Court of Appeals of Washington
    • October 20, 1980
    ...847 (1973). See also Ammerman v. Hubbard Broadcasting, Inc., 91 N.M. 250, 572 P.2d 1258 (1977); In re Goodfader's Appeal, 45 Hawaii 317, 367 P.2d 472 (1961). These decisions only impose a restriction against compelled disclosures when necessary to protect news people from harassment and [61......
  • Request a trial to view additional results
28 cases
  • Branzburg v. Hayes In the Matter of Paul Pappas, Petitioner. United States, Petitioner, v. Earl Caldwell. &#8212 85, 70 8212 94, 70 8212 57, Nos. 70
    • United States
    • United States Supreme Court
    • June 29, 1972
    ...since then although there are occasional dicta that, in circumstances not presented here, a newsman might be excused. In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961); In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963); State v. Buchanan, 250 Or. 244, 436 P.2d 729, cert. denied, 392 U.S. 905, 8......
  • The New York Times Co. v. Gonzales, No. 04 Civ. 7677(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 2, 2005
    ...that those few subpoenas issued usually ask the reporter to testify that his or her story was accurate). 40. Compare Appeal of Goodfader, 45 Haw. 317, 367 P.2d 472, 480-83 (1961) (declining to recognize an evidentiary reporter's privilege where no statutory authority for such a privilege ex......
  • Honda v. Ers, No. 23625.
    • United States
    • Supreme Court of Hawai'i
    • June 17, 2005
    ...Lindeman v. Raynor, 43 Haw. 299, 301; Clark v. Worrall, 146, Mont. 374, 379-81, 406 P.2d 822, 825. As stated in In re Goodfader's Appeals, 45 Haw. 317, 343, 367 P.2d 472, 487, "It is clearly the obligation of counsel in any case to see to it that his objections to or grounds for action are ......
  • Senear v. Daily Journal American, No. 7284-6-I
    • United States
    • Court of Appeals of Washington
    • October 20, 1980
    ...847 (1973). See also Ammerman v. Hubbard Broadcasting, Inc., 91 N.M. 250, 572 P.2d 1258 (1977); In re Goodfader's Appeal, 45 Hawaii 317, 367 P.2d 472 (1961). These decisions only impose a restriction against compelled disclosures when necessary to protect news people from harassment and [61......
  • Request a trial to view additional results

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