IN RE INVESTIGATION OF MARCH 1999 RIOTS

Decision Date26 September 2000
Docket NumberDocket No. 116731.
Citation463 Mich. 378,617 N.W.2d 310
PartiesIn re INVESTIGATION OF MARCH 1999 RIOTS IN EAST LANSING. People of the State of Michigan, Plaintiff-Appellant/Cross-Appellee, v. Anthony David Pastor, Defendant, and Federated Publications, Inc., doing business as Lansing State Journal; WXYZ Channel 7; WZZM-TV; WMMT-TV3; WILX-TV; WLNS-TV; State News, Inc.; The Detroit Free Press, Inc.; WJBK-TV; WKBD-TV, and WJRTTV, Appellees/Cross-Appellants.
CourtMichigan Supreme Court

Stuart J. Dunnings III, Ingham County Prosecutor, and Samuel R. Smith, Circuit Court Unit Chief, Lansing, MI, for the people.

Foster, Swift, Collins & Smith, P.C. (by Charles E. Barbieri), Lansing, for the petitioner/appellee/cross-appellant.

Law Offices of Daw Phillips-Hertz (by Dawn Phillips-Hertz, Lisa Rycus Mikalonis, and Mireille L. Phillips), Troy, amici curiae for the Michigan Press Association.

Opinion

PER CURIAM.

The district court approved the issuance of investigative subpoenas to compel various media outlets to produce videotapes and photographs. The circuit court quashed the subpoenas and the Court of Appeals affirmed. We affirm the judgments of the circuit court and the Court of Appeals because the pertinent statutory language clearly provides that subpoenas may not be issued to the media in the circumstances of this case.

I

The evening of March 27-28, 1999, saw an outbreak of criminal activity in East Lansing. After the Michigan State University men's basketball team was eliminated from the National Collegiate Athletic Association tournament, crowds formed at several places in the city. The ensuing events have often been characterized as a riot.

Newspapers and television stations from the Lansing area and from other Michigan cities sent staff to the scene to report on what was occurring. These persons videotaped and photographed much of what took place.

In the aftermath, the Ingham County Prosecuting Attorney sought to identify as many participants as possible. To that end, he asked the media to share their videotapes and photographs. It is agreed that the media voluntarily provided copies of videotapes and photographs that had been used in news reports, but would not allow the prosecuting attorney to have access to materials that had not been published.

The prosecuting attorney then attempted to obtain the unpublished material through the use of subpoenas to the media. Subpoenas under MCR 2.5061 were approved by the district court.2 Initially, the prosecuting attorney also obtained circuit court approval for the issuance of investigative subpoenas under 1995 PA 148, M.C.L. § 767A.1 et seq.; MSA 28.1023A(1) et seq.

The district court denied a motion to quash the subpoenas issued pursuant to MCR 2.506. The circuit court affirmed that determination, finding inter alia that no First Amendment privilege precluded issuance of subpoenas under the court rule. However, the circuit court did quash the investigative subpoenas that it had issued under M.C.L. § 767A.1 et seq.; MSA 28.1023A(1) et seq.

The media sought to appeal, but the Court of Appeals denied their application for leave to appeal.3

On further application to this Court, we issued an order stating that "[t]he district court erred in allowing use of a subpoena under MCR 2.506 as a discovery procedure in a criminal case." In re Subpoenas to News Media Petitioners, 459 Mich. 1241, 593 N.W.2d 558 (1999). We remanded the case to the district court "for consideration of the prosecuting attorney's request for investigative subpoenas under M.C.L. § 767A.1 et seq.; MSA 28.1023A(1) et seq. Id.

On remand, the district court authorized the prosecuting attorney to issue investigative subpoenas to three newspapers4 and seven television stations.5 The subpoenas directed each recipient to produce videotape and photographs of the disturbances in East Lansing.6

The respondents filed a motion to quash the investigative subpoenas, but the district court denied the motion.

On appeal, the circuit court agreed with the district court that the First Amendment did not provide a basis on which to quash the investigative subpoenas. The circuit court quashed the subpoenas, nonetheless. The court ruled that the subpoenas were improper under subsection 6(6) of the statute governing investigative subpoenas.7 MCL 767A.6(6); MSA 28.1023A(6)(6). That subsection, quoted in full later in this opinion, limits the circumstances under which a media representative is subject to an investigative subpoena.

The Court of Appeals granted leave to appeal to the prosecuting attorney, but affirmed the judgment of the circuit court.8 240 Mich.App. 369, 613 N.W.2d 342 (2000).

The prosecuting attorney has now applied to this Court for leave to appeal.9

II

As noted above, investigative subpoenas are governed by 1995 PA 148, M.C.L. § 767A.1 et seq.; MSA 28.1023A(1) et seq. The proper interpretation of a statutory provision is a question of law that we decide de novo. People v. Burgenmeyer, 461 Mich. 431, 436, n. 10, 606 N.W.2d 645 (2000); People v. Morey, 461 Mich. 325, 329-330, 603 N.W.2d 250 (1999).

MCL 767A.6(6); MSA 28.1023A(6)(6), the subsection at issue in this case, provides:

A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is not required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant, in any inquiry conducted under this chapter. A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is subject to an inquiry under this chapter only under the following circumstances:
(a) To obtain information that has been disseminated to the public by media broadcast or print publication.

(b) If the reporter or other person is the subject of the inquiry.

The second sentence of this subsection plainly states that a person who is involved in the gathering or preparation of news for broadcast or publication is subject to an investigative subpoena only under two circumstances. Neither is present in this case. The fact that the Legislature saw fit to place this controlling statement in the second sentence prompted the circuit court to characterize the statute as "unambiguously though poorly drafted."

In that respect, we agree with the circuit court. We also accept the analysis of the Court of Appeals, which further stated:

We agree with the trial court's finding in regard to the near absolute media exemption clearly provided by the second sentence of this subsection. As the media argue, the second sentence of subsection 6 provides a threshold test that must be satisfied before a reporter will be compelled to respond to an investigative subpoena. Pursuant to this test, a reporter, pursuing the reporter's profession, is subject to an inquiry by use of investigative subpoena only if the prosecutor seeks to obtain previously published information or if the reporter is the subject of the prosecutor's investigation. The plain language of this sentence can be interpreted in no other fashion. [People v. Borchard-Ruhland, 460 Mich. 278, 284, 597 N.W.2d 1 (1999) ].

Although conceding that this sentence, with its exceptions, is unambiguous, the prosecutor contends that it cannot be viewed in a vacuum, and instead must be interpreted in light of the first sentence of subsection 6, which references information concerning informants. The first sentence, on its face, purports to provide an absolute privilege against disclosure of informant-related material in any inquiry conducted by use of investigative subpoenas. The prosecutor submits that the second sentence must be viewed as a modification of the first, essentially asserting that the two conditions allowing inquiry are exceptions to the informant information privilege. Contrary to the prosecutor's assertions, however, we again agree with the reasoning of the media that the two sentences of subsection 6 in fact concern distinctly separate concepts.
As the media argue, the absolute privilege of the first sentence, preventing compelled disclosure of informant-related information, does not even come into play unless the threshold of the second sentence is passed and an inquiry is authorized through satisfaction of one of the two exceptions. In other words, when considering a prosecutor's request to issue an investigative subpoena to a reporter, a court should first apply the second sentence and determine whether either of the two exceptions apply. If not, the subpoena should not issue. However, if an exception is satisfied, the subpoena may issue. If a later challenge is raised regarding the nature of the information sought by the prosecutor, the court should then apply the first sentence and determine whether the materials desired relate to information about, or received from, an informant. If not, the court may order compliance with the subpoena. However, if the information sought is related to a reporter's contact with an informant, the court should give effect to the absolute privilege against disclosure of such subject matter.
The prosecutor argues that the legislators would not put a partial exemption for reporters in the first sentence and a broader exemption in the second because such structure is illogical. As indicated by the above discussion, however, while perhaps unusual in sentence order, the provision is hardly illogical. The prosecutor's argument of grammatical inconsistency is not supported by any legal authority suggesting that the structure of this provision is improper. Although subsection 6 may arguably have been clearer had the sentence order been reversed, given our indication that the second sentence must be considered first and the first second, that the plain language of the provision is nevertheless wholly understandable leads us to the
...

To continue reading

Request your trial
22 cases
  • Potter v. McLeary
    • United States
    • Michigan Supreme Court
    • July 31, 2009
    ...9. Potter v. Murry, 483 Mich. 922, 762 N.W.2d 923 (2009). 10. In re Investigation of March 1999 Riots in East Lansing (People v. Pastor), 463 Mich. 378, 383, 617 N.W.2d 310 (2000). 11. Herald Co. v. Bay City, 463 Mich. 111, 117, 614 N.W.2d 873 (2000). 12. Sun Valley Foods Co. v. Ward, 460 M......
  • Bush v. Shabahang
    • United States
    • Michigan Supreme Court
    • July 29, 2009
    ...N.W.2d 354 (2008). 5. Bush v. Shabahang, 482 Mich. 1105, 758 N.W.2d 267 (2008). 6. In re Investigation of March 1999 Riots in East Lansing (People v. Pastor), 463 Mich. 378, 383, 617 N.W.2d 310 (2000). 7. Herald Co. v. Bay City, 463 Mich. 111, 117, 614 N.W.2d 873 (2000). 8. The former § 585......
  • People Of The State Of Mich. v. Houthoofd A
    • United States
    • Michigan Supreme Court
    • July 31, 2010
    ...269505), pp. 1-6. 3People v. Houthoofd, 485 Mich. 858, 771 N.W.2d 766 (2009). 4People v. Fisher, 220 Mich.App. 133, 145, 559 N.W.2d 318 (1996). 5In re Investigation of March 1999 Riots in East Lansing, 463 Mich. 378, 383, 617 N.W.2d 310 (2000). 6People v. Jendrzejewski, 455 Mich. 495, 499, ......
  • O'neal v. St. John Hosp. & Med. Ctr.
    • United States
    • Michigan Supreme Court
    • July 31, 2010
    ...(2010). 6 Herald Co. v. Bay City, 463 Mich. 111, 117, 614 N.W.2d 873 (2000). 7 In re Investigation of March 1999 Riots in East Lansing, 463 Mich. 378, 383, 617 N.W.2d 310 (2000). 8 Falcon held that in a wrongful death case a plaintiff could bring a claim for a decedent's loss of opportunity......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT