Grand Jury Subpoena of Fawn Vrazo, Matter of

• Decision Date: 02 December 1980
• Citation: 176 N.J.Super. 455,423 A.2d 695
• Parties: , 6 Media L. Rep. 2410 In the Matter of the GRAND JURY SUBPOENA OF FAWN VRAZO.
• Court: New Jersey Superior Court

Page 455

176 N.J.Super. 455

423 A.2d 695, 6 Media L. Rep. 2410

In the Matter of the GRAND JURY SUBPOENA OF FAWN VRAZO.

Superior Court of New Jersey, Law Division Camden County.

Decided Dec. 2, 1980.

Warren W. Faulk, Camden, for petitioner (Brown, Connery, Kulp, Wille, Purnell & Greene, Camden, attorneys).

John B. Mariano, Prosecutor of Camden County, for the State (Raymond Milavsky and James E. Isman, Asst. Prosecutors, on brief).

SIMPSON, J. A. D. (temporarily assigned A.J.S.C.).

Petitioner, a reporter with a Philadelphia newspaper, the Bulletin, moves to quash a subpoena requiring her to appear and testify before the Camden County Grand Jury. R. 1:9-1 and 2. Fawn Vrazo is a Pennsylvania resident and her appearance was pursuant to the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. N.J.S.A. 2A:81-18 et seq. At a hearing before the Court of Common Pleas of Philadelphia County she did not oppose the issuance of the subpoena-with full reservation of her right to litigate, in the New Jersey courts, claimed privileges or other constitutional protections not to appear or testify before the grand jury.

The operative facts are not in dispute. The Camden County Grand Jury is investigating allegations of theft by deception, N.J.S.A. 2C:20-4, as a result of an article written by Vrazo in the March 23, 1980 issue of the Bulletin. The article reports the results of an investigation by Vrazo and Bulletin staff reporters John Fuchs and William P. Barrett. Camden City public payroll irregularities are charged, including allegations that "double dippers" (persons holding two jobs simultaneously) are "no-show" or "part-show" workers who are paid from public funds for hours they do not actually work. The article reports details obtained from confidential sources, as well as personal surveillance by Vrazo of alleged offenders.

By consent, the appearance date of the subpoena has been continued until the decision on this motion to quash. Petitioner claims the protection of the newsperson's privilege, Evid.R. 27 (N.J.S.A. 2A:84A-21); the prosecutor concedes the privilege extends to confidential sources, but seeks Vrazo's appearance and testimony pursuant to the "eyewitness" exception under N.J.S.A. 2A:84A-21a (subdivision h). Petitioner and prosecutor also disagree as to whether the privilege has been waived by previous disclosure pursuant to Evid.R. 37 (N.J.S.A. 2A:84A-29).

I. The Constitutions

The First Amendment to the United States Constitution guarantees freedom of the press. So does Article I, paragraph 6 of the 1947 New Jersey Constitution. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the Supreme Court of the United States noted that at common law there was no privilege of newspersons to refuse to reveal confidential sources or information to a grand jury. The court recognized the collision of great principles: without some protection for seeking out the news, freedom of the press could be eviscerated vs. the public's right (through the grand jury) to every man's evidence relative to an investigation into the commission of crime. For a 5-4 majority, Justice White wrote:

The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not. (Id., Hayes, supra, 408 U.S. at 667, 92 S.Ct. at 2649, 33 L.Ed.2d at 631 (1972))

Justice White's majority opinion additionally stated:

There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute. (Id.,408 U.S. at 706, 92 S.Ct. at 2665, 33 L.Ed.2d at 654 (1972))

Although the claim was advanced in In re Bridge, 120 N.J.Super. 460, 295 A.2d 3 (App.Div.1972), certif. den. 62 N.J. 80, 299 A.2d 78 cert. den. 410 U.S. 991, 93 S.Ct. 1500, 36 L.Ed.2d 189 (1973), no New Jersey court has ever construed our state constitutional guaranty of liberty of the press to provide a reporter's privilege. It is also unnecessary to address such an inquiry at this time, because our legislature has enacted a "shield law."

II. The Shield Law

Statutes in a number of jurisdictions grant newspersons privileges, of varying breadth and nature, not to disclose sources or information obtained in their professional capacity. Annotation, "Privilege of Newsgatherer Against Disclosure of Confidential Sources or Information", 99 A.L.R.3d 37 (1980). New Jersey's shield law ¹ provides, in pertinent part:

Subject to Rule 37, a (newsperson) ... has a privilege to refuse to disclose ... to, any ... grand jury ...

a. The source ... from or through whom any information was procured, obtained, ... delivered; and

b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.

Unless a different meaning clearly appears from the context of this act, as used in this act: ...

h. "In the course of pursuing his professional activities" means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but ... does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.

Evidence Rule 37, ² referred to in our shield law, but applicable also to privileges of other than a newsperson, provides in pertinent part:

A person waives his right or privilege to refuse to disclose ... a specified matter if he ...(b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter ...

A disclosure which is itself privileged or otherwise protected by the common law, statutes or rules of court of this State ... shall not constitute a waiver under this section. ...

As already noted, a reporter had no privilege at common law. Branzburg v. Hayes, supra; In re Grunow, 84 N.J.L. 235, 85 A. 1011 (Sup.Ct.1913). A predecessor statutory privilege, N.J.S.A. 2A:84A-21, also known as Evidence Rule 27, was enacted by our Legislature as L. 1960, c. 52, § 21, eff. July 1, 1960, and provided in full:

Subject to Rule 37 2, a person engaged on, connected with, or employed by, a newspaper has a privilege to refuse to disclose the source, author, means, agency or person from or through whom any information published in such newspaper was procured, obtained, supplied, furnished, or delivered.

In the Bridge case, supra, it was held that a newsman had waived his Rule 27 "source" privilege, pursuant to Rule 37, by disclosing his source and at least part of the information received from such source. In the present case the source of her information has not been disclosed by Ms. Vrazo, and it is not disputed that the "source" or subparagraph "a" privilege of the present shield law, cited above, remains available. The prosecutor contends, however, that the "information" or "b" privilege has been lost by waiver-relying upon Rule 37, since at least part of the privileged matter has been disclosed in the Bulletin article. The reporter, of course, relies upon the "whether or not it is disseminated" clause of the "b" privilege. To the extent there is an irreconcilable conflict, the "b" privilege must prevail, since it results from a 1977 Act of the New Jersey Legislature while the partial disclosure waiver paragraph (1st paragraph) of Evidence Rule 37 was passed in 1960. Brewer v. Porch, 53 N.J. 167, 173, 249 A.2d 388 (1969); 2A Sutherland, Statutory Construction, § 51.03 (4th Ed. 1973, C. D. Sands). Rules 27 and 37 are statutes in pari materia, however, and must be construed together to ascertain the legislative intent thereof. State v. Brown, 22 N.J. 405, 415, 126 A.2d 161 (1956). The apparent conflict disappears when the second paragraph of Rule 37 is also considered-since it provides that a disclosure that is itself privileged does not constitute a waiver of the privilege. Evidence Rule 27, as amended in 1977 to include the "information" or "b" privilege, provides that disseminated news or information is privileged if "obtained in the course of pursuing his professional activities", and this is undisputed. Accordingly, there has been no waiver of the newsperson's privilege by partial disclosure.

The breadth of the "information" or "b" privilege is also clear from the legislative history of our shield laws. Although there is no record of any committee or other legislative hearings or reports on Senate Bill 322 that became our present Evidence Rule 27 (see Footnote 1, supra ), there is an absolute veto message of Governor William T. Cahill, dated March 2, 1973, that relates to a predecessor Senate Bill 1121 and illuminates the present "information" privilege. The 1960 statutory privilege, cited above, was limited to the source of published information. Senate 1121 combined the "source" and a proposed "information" privilege in a single paragraph that read as follows (with brackets reflecting deletions from the originally introduced bill):

a. The source, author, means, agency or person from or through whom any information (published in such newspaper) was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered and b. any news or information (so) obtained in the course of pursuing his professional activities whether or not it is disseminated.

Governor Cahill's veto message noted that the privilege would extend to any reporter's eyewitnessing of a crime. It also said that the bill was an immediate...