Contempt of Stone, In re

• Decision Date: 29 December 1986
• Docket Number: Docket No. 91189
• Citation: 397 N.W.2d 244,154 Mich.App. 121
• Parties: In re CONTEMPT OF Bradley M. STONE. 154 Mich.App. 121, 397 N.W.2d 244
• Court: Court of Appeal of Michigan — District of US

Page 244

397 N.W.2d 244

In re CONTEMPT OF Bradley M. STONE.

Docket No. 91189.

154 Mich.App. 121, 397 N.W.2d 244

Court of Appeals of Michigan.

Submitted July 3, 1986.

Decided Aug. 18, 1986.

Released for Publication Dec. 29, 1986.

[154 MICHAPP 122] Frank J. Kelley, Atty. Gen., Louis J. [154 MICHAPP 123] Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Division Research, Training and Appeals, and Don W. Atkins, Asst. Pros. Atty., for the people.

Dickinson, Wright, Moon, Van Dusen & Freeman by Henry W. Saad and Zan M. Nicolli, Detroit, for Storer Communications, Inc.

Before GRIBBS, P.J., and WALSH and BEASLEY, JJ.

GRIBBS, Presiding Judge.

Respondent-appellant Storer Communications, Inc. (Storer), appeals as of right from the Wayne Circuit Court's January 27, 1986, order denying Storer's motion to quash grand jury subpoenas and its March 18, 1986, order holding Storer's employee, television news reporter Bradley M. Stone, in contempt of court for failure to surrender confidential videotapes to a Wayne County citizens grand jury. We affirm.

Late in its term, the 1984-1985 Wayne County citizens grand jury began to investigate the shooting death of an off-duty Michigan State trooper. On August 29, 1985, Trooper Paul Hutchins and a female companion were accosted in Hart Plaza in downtown Detroit by two young males who announced a holdup. Trooper Hutchins's wallet was taken and he was shot and killed by one of the pair as he reached for his own weapon. The assailants escaped on foot.

On September 27, 1985, grand jury subpoenas were served on William Flynn, vice president and general manager of Channel 2, Storer's station, and on William Vance, Channel 2's news director, directing them to appear before the grand jury on October 3. The subpoenas demanded production of [154 MICHAPP 124] all written, filmed or recorded materials and notes relating to a Channel 2 news series on Detroit area teen gangs, including all censored and edited portions and silhouette filmings related to or disclosing the identities of all persons who appeared in the news story and film. A motion to quash was filed. On October 21, the trial court heard arguments on that motion and, on November 25 and 26, the testimony of Michigan State Police Detective Sergeant Eric Humphrey and of Channel 2 reporter Bradley M. Stone was taken in a closed session. On January 27, 1986, in a lengthy, well-reasoned opinion, the trial court denied the motion to quash. On March 18, 1986, the trial court held Stone in contempt for failure to surrender the tapes to the grand jury in accordance with Grand Jury Subpoena No. 86-23.

On March 25, 1986, a panel of this Court granted a stay to Storer. On April 24, 1986, this Court set aside the stay. ¹ On May 15, 1986, the Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court with directions to reinstate the order staying enforcement of the contempt order until the date of release of our opinion and to expedite hearing of and decision in this case. On May 21, 1986, this Court issued an order staying enforcement of the contempt order until further order of this Court or until release of our opinion.

On appeal, we are faced with two issues. First, we must determine the reach of Michigan's "shield law," M.C.L. Sec. 767.5a; M.S.A. Sec. 28.945(1). Second, we must decide if a television news reporter has a common-law or constitutional privilege to withhold information sought by a grand jury.

[154 MICHAPP 125] Michigan's shield law, M.C.L. Sec. 767.5a; M.S.A. Sec. 28.945(1), is contained in the chapter of the Code of Criminal Procedure dealing with grand juries. It provides:

"In any inquiry authorized by this act communications between reporters of newspapers or other publications and their informants are hereby declared to be privileged and confidential. Any communications between attorneys and their clients, between clergymen and the members of their respective churches, and between physicians and their patients are hereby declared to be privileged and confidential when such communications were necessary to enable such attorneys, clergymen, or physicians to serve as such attorney, clergyman, or physician." (Emphasis added.)

The question presented in this appeal, which is one of first impression, is whether or not television news reporters come within the purview of that statute. We hold that they do not.

First, we note that the statute itself makes no mention of television or radio reporters. Rather, it refers to "reporters of newspapers or other publications." Appellant urges us to construe the statute broadly to read "publication" as including a television news show.

Courts may not speculate as to the probable intent of the Legislature beyond the words employed in a statute. Ordinary words are given their plain and ordinary meaning, Winiecki v. Wolf, 147 Mich.App. 742, 744, 383 N.W.2d 119 (1985). When the language of a statute is clear and unambiguous, judicial construction is neither required nor permitted, Attard v. Adamczyk, 141 Mich.App. 246, 250, 367 N.W.2d 75 (1985). Such a statute must be applied, and not interpreted, since it speaks for itself, City of Lansing v. Lansing Twp., 356 Mich. 641, 649, 97 N.W.2d 804 (1959); Winiecki, supra.

[154 MICHAPP 126] As the trial court noted, "publication" in its commonly understood sense means printed material for public dissemination. This conclusion is bolstered by the fact that the legislatures of other states have specifically referred to television and radio reporters. The State of Maryland amended its shield statute to include radio and television reporters in 1949, the year Michigan enacted its shield law. See Tofani v. State, 297 Md. 165, 169, 465 A.2d 413 (1983). Michigan's shield law was amended in 1951, 1951 P.A. 276, and the grand jury statutes were amended in 1965, 1965 P.A. 251, and in 1970, 1970 P.A. 9. The Legislature could have included a reference to television and radio news reporters on those occasions, but it chose not to do so.

As the trial court noted, reading the statute to include television news reporters would be an inappropriate exercise of the judicial function, and arguments concerning the fairness of the statute must be addressed to the Legislature. The shield law is plain on its face and needs no construction. We conclude that the shield law applies only to the print media. See Humphrey, Shield Statutes: A Changing Problem in Light of Branzburg, 25 Wayne L Rev 1381, 1388 (1979) (Michigan's shield law "afford[s] a unique privilege to the printed press in that state" [emphasis added] ).

Storer contends, however, that, if we give the statute its plain meaning, it violates the rights of broadcast journalists to equal protection of the law, U.S. Const. Am. XIV; Mich. Const.1963, art. 1, Sec. 2. It urges us to construe the statute to avoid the asserted constitutional infirmity.

In Fox v. Employment Security Comm., 379 Mich. 579, 153 N.W.2d 644 (1967), the Supreme Court noted:

[154 MICHAPP 127] "There is no doubt that State legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in which it is found." 379 Mich. 588, 153 N.W.2d 644 (citations omitted).

When it creates a statutory distinction, the Legislature is not required to deal with every aspect of a particular problem at the same time, nor are the classifications which it creates required to be the perfect alternative with respect to solving the problem the Legislature is addressing, Babbitt v. Employers Ins. of Wausau, 136 Mich.App. 198, 200-201, 355 N.W.2d 635 (1984), lv. den. 419 Mich. 962 (1984). A state may properly direct its legislation against what it deems an existing evil without covering the whole field of possible abuses. The statute should not be overthrown merely because other instances may be suggested to which it might also have been applied, People's Appliance Inc. v. City of Flint, 358 Mich. 34, 45, 99 N.W.2d 522 (1959). Equal protection does not require that the Legislature choose between attacking every aspect of a problem or not attacking the problem at all. Sutton v. Cadillac Area Schools, 117 Mich.App. 38, 43, 323 N.W.2d 582 (1982).

Absent a fundamental right or a suspect classification, a legislative classification does not violate equal protection guarantees if it has a rational basis, Sutton, supra. Where a fundamental right or suspect classification is involved, the "strict scrutiny-compelling state interest" test is used to determine[154 MICHAPP 128] the validity of legislation. See Sutton, supra, p. 42, 323 N.W.2d 582. In applying these tests, the challenged legislative judgment is accorded a presumption of constitutionality, Babbitt, supra, 136 Mich.App. p. 200, 355 N.W.2d 635. Fundamental interests include the right to vote and travel, due process in criminal matters, and specific guarantees in the bill of rights, Anderson v. Detroit, 54 Mich.App. 496, 499, n. 1, 221 N.W.2d 168 (1974), lv. den. 400 Mich. 826 (1977).

Essentially, appellant's argument is that strict scrutiny applies to this statute because it deals with the fundamental right of freedom of the press. We disagree. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the United States Supreme Court held that requiring a newsman to appear before a state or federal grand jury does not abridge the freedom of speech and the press guaranteed by the First Amendment, and that the Constitution of the United States does not exempt a newsman from appearing before a grand jury and answering...