Beach v. Shanley

• Citation: 476 N.Y.S.2d 765,62 N.Y.2d 241
• Parties: , 465 N.E.2d 304, 10 Media L. Rep. 1753 In the Matter of Richard BEACH, Appellant, v. Donald J. SHANLEY, as Special District Attorney of Rensselaer County, Respondent.
• Decision Date: 10 May 1984
• Court: New York Court of Appeals

Page 765

476 N.Y.S.2d 765

62 N.Y.2d 241, 465 N.E.2d 304, 10

Media L. Rep. 1753

In the Matter of Richard BEACH, Appellant, v. Donald J. SHANLEY, as Special District Attorney of

Rensselaer County, Respondent.

Court of Appeals of New York.

May 10, 1984.

Peter L. Danziger and Salvatore D. Ferlazzo, Albany, for appellant

Donald J. Shanley, Sp. Dist. Atty., respondent pro se.

Jack C. Landau and Judy D. Lynch, Washington, D.C., for The Reporters Committee for Freedom of the Press, amicus curiae.

Floyd Abrams, Edward P. Krugman, Katharine P. Darrow, New York City, and Alice Neff Lucan, White Plains, for The

New York Times Co. and others, amici curiae

Dean Ringel, Victor A. Kovner, Steven Klugman, Eric M. Freedman, Ralph N. Gimbel, Robert P. Marshall, Jr., and Allen Y. Shaklan, New York City, for Committee on Communications Law of the Ass'n of the Bar of the City of New York, amicus curiae.

John W. Tabner, New York City, and Edward M. Scher, Albany, for New York State Broadcasters Ass'n, Inc., amicus curiae.

OPINION OF THE COURT

COOKE, Chief Judge.

In enacting the so-called "Shield Law," the Legislature expressed a policy according reporters strong protection against compulsory disclosure of their sources or information obtained in the news-gathering process. As the statute is framed, the protection is afforded notwithstanding that the information concerns criminal activity and, indeed, even when revealing the information to the reporter might itself be a criminal act. Consequently, in the circumstances here, a subpoena requiring a television reporter to appear before a grand jury investigating the unauthorized disclosure of another grand jury's report should be quashed.

In April 1982, the Rensselaer County Sheriff suspended a lieutenant and a captain for their alleged involvement in retaining or selling guns that had been turned over to the Sheriff's Office for destruction. A grand jury was convened to investigate the office. No indictments were issued, but, on October 26, 1982, three reports were handed up to a Supreme Court Justice.

One report was immediately released to the public. Among other things, the report criticized the adequacy of the Sheriff's supervision and the lack of hiring standards. The other two reports were ordered sealed pursuant to CPL 190.85. The District Attorney revealed that these reports recommended the removal of two unidentified public officials.

Petitioner, a reporter for Station WRGB-TV in Schenectady, was contacted by a source whom he refuses to identify. In return for petitioner's express agreement to guard the individual's identity, the source gave information about at least one of the sealed reports. On October 27 and 28, Station WRGB broadcast reports that the Sheriff was one of the public officials whose removal had been recommended.

On November 9, petitioner was served with a subpoena ad testificandum to appear the next day before a Rensselaer County Grand Jury that was investigating the "disclosure of a certain sealed Grand Jury report." At that point, no one else had testified or had been subpoenaed before the Grand Jury. Petitioner moved to quash his subpoena on November 10. Before he could serve his papers, the District Attorney disqualified himself because of the possibility that someone in his office was responsible for disclosing the sealed report's contents. The respondent in this proceeding was appointed as Special District Attorney, and he withdrew the November 9 subpoenas.

Respondent had a subpoena duces tecum issued on January 17, 1983, directed to petitioner. ¹ The basic thrust of the Grand Jury's investigation was to determine whether the contents of the sealed report were disclosed by a grand juror or a public official or public employee in violation of section 215.70 of the Penal Law. ² Petitioner again moved to quash the subpoena, arguing that New York's Shield Law (Civil Rights Law, § 79-h) provided him with an absolute privilege to keep his source's identity private. County Court granted petitioner's motion.

The Appellate Division, 94 A.D.2d 542, 466 N.Y.S.2d 725, disagreed and reinstated the subpoena. That court reasoned that, in the present circumstances, the statute was invalid because it impaired a grand jury's power to investigate public officials (see N.Y. Const., art. I, § 6). This court now reverses.

The parties ask us to decide if a reporter may invoke the Shield Law when the very disclosure of information by the confidential source may have been a criminal act. As a preliminary matter, though, it has been suggested that the present proceeding is premature as the Shield Law creates an evidentiary privilege and a protection against contempt orders, but it does not authorize the quashing of grand jury subpoenas. ³ Under the circumstances of this matter, the motion to quash is not inappropriate.

Generally, a grand jury's power to issue subpoenas is unfettered. An attempt to avoid a subpoena will be successful only if the movant can show that the evidence sought is immaterial or irrelevant, or that "the futility of the process to uncover anything legitimate is inevitable or obvious" (see Matter of Edge Ho Holding Corp., 256 N.Y. 374, 382, 176 N.E. 537). As with many rules, application of this principle varies according to the factual context. To the extent that a subpoena seeks testimony, the assertion that the contemplated testimony is subject to a privilege will not usually justify quashing the subpoena (see id., at pp. 381-382, 176 N.E. 537; Matter of Hirshfield v. Craig, 239 N.Y. 98, 118, 145 N.E. 816; Matter of Pennock v. Lane, 18 A.D.2d 1043, 1044, 238 N.Y.S.2d 588; 2A Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 2304.13, p. 23-73). In that event, litigation must await such time as when the witness refuses to answer the question on the ground that privileged information is concerned and an attempt is made to compel a response. A different situation prevails when a subpoena seeks the production of documents that are assertedly subject to a privilege. The privilege's purpose is thwarted if the documents must be revealed before it will be determined whether their contents are protected against disclosure (see Matter of Hirshfield v. Craig, supra ). Consequently, a subpoena duces tecum may be attacked by a motion to quash before production is made or the witness appears before the Grand Jury (see Matter of Grand Jury Investigation, 59 N.Y.2d 130, 463 N.Y.S.2d 758, 450 N.E.2d 678, 2A Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 2304.13).

Petitioner's application to quash the subpoena duces tecum is not premature insofar as the subpoena demanded that petitioner produce his notes, records, and other physical materials that may be privileged under the Shield Law. More troubling is petitioner's attempt to avoid any appearance before the Grand Jury. As noted, the assertion of a testimonial privilege normally must be withheld until a question is posed. The factual setting of the present appeal obviates this requirement. Respondent concedes that the entire focus of the Grand Jury's inquiry would be on the identity of petitioner's confidential source and other information that petitioner obtained in the course of his journalistic activities, which would be at least nominally within the scope of the Shield Law's privilege. All that would be gained by requiring the parties to go through the formality of appearing before the Grand Jury is that a court would have a transcript of petitioner's giving his name, address, and occupation before refusing to answer any questions. ⁴ In view of respondent's explicit concession in our court as to the sole objective of the service of the subpoena on petitioner, it is considered that the ultimate substantive issue presented for resolution is the equivalent of whether petitioner could be punished for contempt in the event of his failure to disclose his source to the Grand Jury.

It bears noting that this is not intended to undermine a grand jury's power to issue subpoenas, either generally or as to the subpoenas under consideration here. Indeed, it would not have been an abuse of discretion for the courts below to have dismissed as premature the motion to quash insofar as it related to petitioner's obligation to appear and testify before the Grand Jury.

Having disposed of this procedural point, attention now turns to the merits of petitioner's assertion that the information sought is protected under section 79-h of the Civil Rights Law.

New York first adopted a Shield Law 14 years ago (L.1970, ch. 615). In approving the legislation, Governor Rockefeller stated:

"The bill protects journalists and newscasters from charges of contempt in any proceeding brought under State law for refusing or failing to disclose information or sources of information obtained in the course of gathering news for publication.

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"Freedom of the press is one of the foundations upon which our form of government is based. A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news.

"The threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information." (NY Legis Ann, 1970, p 508.)

Over the next few years, a number of courts held that the statute afforded less than an absolute shield (see, e.g., People v. Dan, 41 A.D.2d 687, 342 N.Y.S.2d 731, app. dsmd. 32 N.Y.2d 764, 344 N.Y.S.2d 955, 298 N.E.2d 118; Matter of Wolf v. People, 69 Misc.2d 256, 329 N.Y.S.2d 291, affd. 39 A.D.2d 864, 333 N.Y.S.2d 299; Matter of WBAI-FM, 68 Misc.2d 355, 326 N.Y.S.2d 434, affd. sub nom. Matter of WBAI-FM v. Proskin, 42 A.D.2d 5, 344 N.Y.S.2d 393). In 1975, the Legislature reacted by adding a provision prohibiting grand juries from pursuing contempt proceedings against reporters (see L.1975, ch. 316). Further judicial...