Grand Forks Herald v. District Court in and for Grand Forks County, 10242

• Decision Date: 12 August 1982
• Docket Number: No. 10242,10242
• Citation: 322 N.W.2d 850
• Parties: 8 Media L. Rep. 2269 The GRAND FORKS HERALD, a corporation, and Beverly Kees, its Executive Editor, Petitioners, v. The DISTRICT COURT In and For GRAND FORKS COUNTY, the Honorable A. C. Bakken, and Lillian Leng, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 850

322 N.W.2d 850

8 Media L. Rep. 2269

The GRAND FORKS HERALD, a corporation, and Beverly Kees, its

Executive Editor, Petitioners, v. The DISTRICT COURT In and For GRAND FORKS COUNTY, the

Honorable A. C. Bakken, and Lillian Leng, Respondents.

Civ. No. 10242.

Supreme Court of North Dakota.

Aug. 12, 1982.

Thomas John Kuchera, of Kuchera, Stenehjem & Wills, Grand Forks, for petitioners.

Patrick Morley, of O'Grady, Morley & Morley, Grand Forks, for respondents.

VANDE WALLE, Justice.

The Grand Forks Herald (hereinafter "Herald") requested this court to exercise its original jurisdiction and issue a supervisory writ directing the judge of the District Court for Grand Forks County to vacate its order compelling the Herald to respond to a subpoena duces tecum by supplying photographs of an automobile-motorcycle accident in the public streets of the city of Grand Forks. We deny the writ.

Shortly after the accident a photographer from the Herald took one or more photographs of the accident scene. One of the photographs was published by the Herald. As a result of the accident John Lian, the operator of the motorcycle, filed suit against Lillian Leng, the operator of the automobile. Helga Grunenwald, a passenger on the Lian motorcycle, also filed suit against Leng. With regard to the latter suit Leng filed a third-party complaint against Lian. Leng attempted to obtain from the Herald all the photographs of the scene of the accident in the Herald files. The Herald customarily and regularly offers to the public, at a cost of $25, a print of a photograph that it has published. The Herald does not make unpublished photographs available to anyone at any price. Counsel for Leng obtained a subpoena duces tecum which required John Stennes, chief photographer of the Herald, to appear before the District Court and to bring with him any and all photographs or negatives of the accident in the Herald files. After certain procedural maneuvering the Herald filed a motion to quash the subpoena. A hearing ¹ on the motion to quash the subpoena was held before the District Court on June 10, 1982, and an order requiring the Herald to produce for Leng's counsel all photographs taken of the accident and surroundings by any Herald photographer was issued on June 11, 1982. The petition for a supervisory writ followed. After requesting briefs from the parties and after oral argument the matter is before us for decision.

Before considering the merits of the petition, we must determine whether or not we will exercise original jurisdiction. We have stated many times that the power of our court to issue original remedial writs, even upon a proper showing, is discretionary and that the power cannot be invoked as a matter of right but will be employed to prevent possible injustice. Spence v. North Dakota District Court, 292 N.W.2d 53 (N.D.1980); Suburban Sales v. District Court of Ramsey County, 290 N.W.2d 247 (N.D.1980); City of Williston v. Beede, 289 N.W.2d 235 (N.D.1980); Marmon v. Hodny, 287 N.W.2d 470 (N.D.1980); Burlington Northern v. North Dakota District Court, 264 N.W.2d 453 (N.D.1978). From this it necessarily follows that the court itself, on a case-by-case basis, will determine whether or not it should exercise its original jurisdiction. Marmon, supra; Burlington Northern, supra; State ex rel. Foughty v. Friederich, 108 N.W.2d 681 (N.D.1961).

We have also indicated numerous times that we will exercise original jurisdiction only where justice is threatened and no other remedy is adequate or allowed by law. Spence, supra; Malony v. Cass Cty. Court of Increased Juris., 301 N.W.2d 112 (N.D.1980). In determining if another remedy is provided by law, we have considered whether or not the order we are asked to review is appealable and we have indicated that a supervisory writ is not intended to be a substitute for appeal nor is it intended to be used in lieu of other adequate remedies available under the law. Spence, supra. In determining whether or not an adequate remedy is available, we have said that an order which is not appealable as a final order but is reviewable on the appeal of a judgment provides an adequate remedy. Suburban Sales, supra; Spence, supra.

There appears to be little doubt that an order involving a discovery proceeding is interlocutory, is not a final order, and is not appealable. Marmon, supra; Northwest Airlines, Inc. v. State, Through Bd. of Equal., 244 N.W.2d 708 (N.D.1976). In this instance the order is neither directly appealable nor is it reviewable on an appeal from a final judgment because the Herald is not a party to the action between Lian, Grunenwald, and Leng and therefore would have no standing to appeal from a final judgment. ² Nevertheless, although a discovery order may not be directly appealable or subject to review on appeal from a final judgment, and although no other adequate remedy is provided, the increasing caseload of this court makes it apparent that we cannot correct, through original jurisdiction, every miscarriage of justice which someone may perceive to be present in an interlocutory order of a lower court. However, in this case it is alleged that the merits of the issues involve a matter of substantial public interest [see Spence, supra], the First Amendment right of freedom of the press. Furthermore, the issues involve a case of first impression, insofar as the construction by this court is concerned, of the so-called "shield" statute, Section 31-01-06.2, N.D.C.C. Because the order of the District Court is neither appealable nor, apparently, subject to review on appeal from a final judgment, and because it involves a matter of some public interest, we determine to exercise our original jurisdiction and review the order of the District Court requiring the Herald to produce for Leng's review the photographs taken by a Herald photographer at the scene of the accident in question.

The primary issue in this case arises as a result of a dispute between the principle that the public has a right to every man's evidence, except for those persons protected by a constitutional, common-law, or statutory privilege, and the interest in maintaining a free and unfettered press as guaranteed by the First Amendment to the United States Constitution. The Herald alleges that the District Court erred in refusing to recognize that Section 31-01-06.2, N.D.C.C., enlarges and makes more certain the privilege conferred upon news gatherers by the First and Fourteenth Amendments to the Constitution of the United States.

The application of the First Amendment to discovery proceedings involving the news media is the subject of some dispute. Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977), cert. denied 436 U.S. 905, 98 S.Ct. 2234, 56 L.Ed.2d 402 (1978). 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 newsmen to appear and testify before a State or Federal grand jury did not abridge the freedom of speech and press guaranties of the First Amendment. Some subsequent decisions by lower courts have attempted to limit that decision to its facts, i.e., appearances of newsmen before State or Federal grand juries. See Annot., 99 A.L.R.3d 37. As an example, in Democratic National Committee v. McCord, 356 F.Supp. 1394 (D.C.Cir.1973), Judge Richey, in discussing Branzburg, distinguished the decision and indicated that considerations in civil discovery are vastly different from those in the criminal context, and held that newsmen had a "qualified privilege" under the First Amendment from having to testify. See also Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981). Other courts have reached an opposite conclusion, holding that there is no First Amendment privilege involved. See, e.g., Forest Hills Utility Co. v. City of Heath, 37 Ohio Misc. 30, 302 N.E.2d 593 (1973).

We need not determine whether or not news gatherers have a First Amendment privilege, qualified or otherwise, to not testify or divulge information, including the furnishing of photographs obtained as a result of their activities as news gatherers. In 1973 the North Dakota Legislature enacted Senate Bill 2077, codified as Section 31-01-06.2, N.D.C.C. The enactment of the legislation was in apparent response to the Branzburg decision. See minutes of the Senate Judiciary Committee of January 10, 1973, and minutes of the House Judiciary Committee of February 27, 1973. Section 31-01-06.2, N.D.C.C., provides:

"Disclosure of news sources and information required only on court order.--No person shall be required in any proceeding or hearing to disclose any information or the source of any information procured or obtained while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization in publishing or broadcasting news, unless directed by an order of a district court of this state which, after hearing, finds that the failure of disclosure of such evidence will cause a miscarriage of justice."

We will limit our review in this proceeding to the interpretation and application of the statute. Neither side has alleged that the statute is invalid on its face. ³

The Herald also alleges that the district court abused its discretion in determining that a miscarriage of justice would occur if the Herald did not disclose the photographs. The Herald does not contend that our review of the matter extends beyond determining whether or not the District Court abused its discretion and both sides agree that an abuse of discretion is the standard of review before this court. Therefore, that is the standard of review we will apply. See Matter of Adoption of Gotvaslee, 312 N.W.2d 308 (N.D.1981). We have indicated that a trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner. See Dobervich v. Central Cass Public School Dist., 302 N.W.2d 745 (N.D.1981). Furthermore, an abuse of...