Caldero v. Tribune Pub. Co., 11921
| Citation | 562 P.2d 791,98 Idaho 288 |
| Decision Date | 04 March 1977 |
| Docket Number | No. 11921,11921 |
| Parties | , 2 Media L. Rep. 1490 Michael A. CALDERO, Plaintiff-Respondent, v. TRIBUNE PUBLISHING COMPANY and James E. Shelledy, Appellants. |
| Court | Idaho Supreme Court |
Reed Clements of Clements & Clements, Lewiston, for appellants.
Fredric V. Shoemaker of Webb, Johnson, Redford & Greener, Boise, for plaintiff-respondent.
This is an appeal from an order, judgment, and sentence of and for contempt resulting from a newsman's refusal to disclose the identity of an informant. The existence and/or extent of a constitutionally based privilege from such disclosure is one of first impression in this jurisdiction.
Michael Caldero instituted an action in libel against the Tribune Publishing Company based on an article printed in the November 23, 1973, issue of the Lewiston Morning Tribune. The substance of the complaint was that the article contained 'an unfair, false and malicious account' of an incident involving respondent while he was employed as an undercover agent for the Idaho Bureau of Narcotic Enforcement.
The article purported to describe in detail an incident of August 27, 1972, when Caldero and another agent were in a public park in Coeur d'Alene, Idaho, and in the process of an arrest of one Booth who had attempted to sell them narcotics. Booth was in the company of one Johnson and when an altercation ensued between Booth and the two agents, Johnson attempted to exit the scene in a vehicle. Although the precise facts are unclear and in dispute, it is at least agreed that Caldero fired three shots through the windshield of the Johnson-driven vehicle, two of which struck and injured Johnson.
The Tribune article in question appeared more than a year after the event under the by-line of Jay Shelledy and had as its focus the professional propriety of Caldero's conduct. Caldero claimed that 'he fired in self-defense; that Johnson tried to run him down.' In the article Caldero's assertion was contrasted with statements from an eyewitness and general observations from the county prosecutor and he State Attorney General. The following statements of principal interest here were attributed to an undisclosed 'police expert', i. e.:
'One police expert, in an off-the-record interview with the Tribune, said Caldero's justification for shooting didn't add up. His reasoning was derived mainly from logistical facts:
'-It was more than 90 minutes after sundown, so the lighting was too poor to see Caldero's small wallet badge at a distance greater than a few yards.
'-The distance between Caldero and Johnson's car when Johnson pulled out of the parking stall was not sufficient for the vehicle to have picked up much speed, especially since the tires were not getting traction in the loose gravel. Even the slowest agent could have stepped out of the way, unless he was determined to throw himself in front of the car to physically stop it. (Witnesses estimate the speed of the car at less than 10 m. p. h. when the shots were fired.)
'Caldero didn't have time to pull out his gun while running toward the car, dig out his wallet and show his badge, get out of the way of the car, replace his wallet and fire three shots with both hands on the gun as police are taught to fire.
'The position of the bullet holes and angle at which Johnson was hit put Caldero adjacent to the left front tire when he fired. Therefore, the car had missed him and he was in no apparent danger and in good position to shoot the tires out if he felt he had to fire his gun.
Following the institution of the Caldero action, the Tribune filed an answer thereto and counsel for both parties proceeded to take depositions in the course of discovery. In that process Shelledy was deposed and questions were asked by counsel pertaining to the portion of the article on the opinion of the 'police expert.' Shelledy directly refused to answer questions which would in his opinion either reveal or lead to the identity of the source of the information. Shelledy thereafter was added as a party to the action together with an amended claim of invasion of privacy.
Shelledy was the subject of a motion to compel answer and the defendants filed a motion for summary judgment. Both motions were subject to a hearing at the conclusion of which the court ordered disclosure by Shelledy and reserved ruling on the summary judgment motion. The court entered an order which directed Shelledy to appear and answer three questions:
'1. Who is the person identified as the 'police expert' in the subject article?
'2. What was the time and place of the conversation between the depondent and the police expert?
The court, in reserving ruling on defendants' summary judgment motion, indulged in the following colloquy:
'MR. CLEMENTS (Defendants' attorney): * * * (A)ssuming that you would satisfy yourself, that the source existed, that the source gave the information to Mr. Shelledy, by way of his opinion as reported * * * would you feel that in this case there would be actual malice?
Apparently, plaintiff's counsel had argued to the district court that Taylor v. KTVB, 96 Idaho 202, 525 P.2d 984 (1974), holds that 'malice' may be inferred from an publication which fails to distinguish mere opinion from fact. Parenthetically, we note that we do not read that case as so holding. See, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The district court opined:
(Tr. 4.)
Shelledy was again deposed and with respect to questions two and three of the court order, he indicated that the conversation took place by telephone approximately ten days prior to publication of the article. He explained to his anonymous source the circumstances surrounding the shooting incident as they had been revealed by his investigation and the anonymous source opined that under those circumstances in retrospect, Caldero's life was not in danger at the time of the shooting. Collateral questions which had been put to the appellant were rejected by the district court as being beyond the scope of his order.
Upon being asked the identity of the police expert, Shelledy read a statement declaring his refusal to answer was based upon the First Amendment of the United States Constitution and his professional code of ethics. Whereupon after being advised of the consequence of his conduct, he was judged in contempt and ordered incarcerated for a period of 30 days. It was ordered that thereafter he would then be re-examined as to the identity and source of his information. Upon order, the execution of that judgment has been stayed pending this appeal.
We note at the beginning of our analysis:
'In 1958, a news gatherer asserted for the first time that the First Amendment exempted confidential information from public disclosure pursuant to a subpoena issued in a civil suit, * * *.' Banzburg v. Hayes, 408 U.S. 665, at 685, 92 S.Ct. 2646 at 2659, 33 L.Ed.2d 626.
In a general context Idaho's statutory scheme contemplates:
'All persons, without exception, otherwise than is specified at the next two sections, who, having organs of sense, can perceive, and perceiving, can make known their perception to others, may be witnesses.' I.C. § 9-201.
'A witness, served with a subpoena, must attend at the time appointed, with any papers under his control, required by the subpoena, and answer all pertinent and legal questions, and unless sooner discharged, must remain until the testimony is closed.' I.C. § 9-1301.
I.C. § 9-202 proscribes testimony from persons who are of unsound mind, under ten years of age and certain persons seeking to testify as to communications occurring before the death of a deceased person.
I.C. § 9-203 provides:
'There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person can not be examined as a witness in the following cases: * * *.'
Thereafter are proscribed certain communications between husband and wife, attorney and client, clergyman or priest and confessor, physician-patient, communications to a public officer under certain circumstances, counselor-student, certain communications between parent and child. We note that such statutory scheme has been considered and amended by our legislature as recently as 1972.
It is clear that appellant here falls within the clear requirement that he appear and testify and that his asserted privilege is not recognized nor is he excused from testifying under our statutes. It is not necessary and we do not examine any question as to conflict between any future rule of this Court and a statutory privilege. See, R.E.W....
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...id., at p. 82.)6 A few courts have rejected even a qualified privilege. The Idaho Supreme Court so held in Caldero v. Tribune Publishing Co. (1977) 98 Idaho 288, 562 P.2d 791, certiorari denied, 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291, but later said that it would not require disclosure ......
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