IN RE SUBPOENAS

• Decision Date: 22 June 2000
• Docket Number: Docket No. 220790.
• Citation: IN RE SUBPOENAS, 613 N.W.2d 342, 240 Mich. App. 369 (Mich. App. 2000)
• Parties: In re SUBPOENAS TO NEWS MEDIA PETITIONERS. In 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., d/b/a 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 WJRT-TV, Appellees/Cross-Appellants.
• Court: Court of Appeal of Michigan — District of US

613 N.W.2d 342

240 Mich. App. 369

In re SUBPOENAS TO NEWS MEDIAPETITIONERS.

In re Investigation of March 1999 Riots in East Lansing.

People of the State of Michigan, Plaintiff-Appellant/Cross-Appellee, v.Anthony David Pastor, Defendant, andFederated Publications, Inc., d/b/a 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 WJRT-TV, Appellees/Cross-Appellants.

Docket No. 220790.

Court of Appeals of Michigan.

Submitted February 2, 2000, at Detroit.

Decided March 28, 2000, at 9:05 a.m.

Released for Publication June 22, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Stuart J. Dunnings, III, Prosecuting Attorney, and Samuel R. Smith, Chief Appellate Attorney, for the people.

Foster, Swift, Collins & Smith, P.C.(by Charles E. Barbieri), Lansing, for Federated Publications, Inc.Honigman, Miller, Schwartz & Cohn(by Herschel P. Fink and Cameron J. Evans), Detroit, for The Detroit Free Press, Inc., WJBK-TV, WKBD-TV, and WJRT-TV.

Kasiborski, Ronayne & Flaska(by John J. Ronayne, III), Detroit, for WILX-TV, WLNS-TV, and State News, Inc.

Butzel Long(by James E. Stewart) for WXYZ-TV, Detroit, and Baker & Hostetler LLP(by Bruce W. Sanford), Washington, D.C., of Counsel to Channel 7 of Detroit, Inc.

Warner, Norcross & Judd(by Devin S. Schindler), Grand Rapids, for WZZM-TV.

Varnum, Riddering, Schmidt & Howlett, LLP(by John W. Allen), Kalamazoo, for WWMT-TV3.

Law Offices of Dawn Phillips-Hertz(by Dawn Phillips-Hertz and Lisa Rycus Mikalonis), Troy, amicus curiae for Michigan Press Association.

Before: O'CONNELL, P.J., and MURPHY and JANSEN, JJ.

MURPHY, J.

In April 1999, a number of investigative subpoenas were issued to appellees/cross-appellants, several news organizations (hereinafter the media), requiring the media to produce several unpublished photographs and videotapes taken by the media's employees during what has been referred to as the East Lansing riots in March 1999.After a remand from our Supreme Court, the district court held that the investigative subpoenas were proper under M.C.L. § 767A.1 et seq.;MSA 28.1023A(1)et seq.The circuit court reversed and quashed the subpoenas, holding that the statute exempts news gatherers while they are pursuing their profession.The prosecutor now appeals by leave granted from the circuit court order reversing the decision of the district court and quashing the prosecutor's investigative subpoenas.We affirm.

The facts are essentially undisputed.On March 27 and 28, 1999, the media took several photographs and videotapes during a disturbance in East Lansing following the elimination of the Michigan State University Spartans from the NCAA basketball tournament.In April 1999, the Ingham County Prosecutor served the media with broad discovery subpoenas pursuant to MCR 2.506 in the criminal case of People v. Pastor, involving one of the alleged participants in the March disturbance.These so-called "court rule" subpoenas requested the media to provide several unpublished photographs and videotapes that were taken by the media while covering the riots.The media moved to quash the court rule subpoenas, arguing that MCR 2.506 does not allow discovery subpoenas in criminal matters and that they had a qualified privilege under the First Amendment.The district court denied this motion on April 9 and 13,1999.

In the meantime, the prosecutor sought to obtain the same unpublished photographs and videotapes through the use of investigative subpoenas.¹On April 14, 1999, the media were served with investigative subpoenas that were provisionally issued by the Ingham Circuit Court pursuant to M.C.L. § 767A.1 et seq.;MSA 28.1023A(1)et seq.The media appealed the district court's ruling refusing to quash the court rule subpoenas.The media also moved to quash the investigative subpoenas provisionally issued by the circuit court.The circuit court ordered the matters consolidated for hearing.On April 22, 1999, the circuit court affirmed the district court's denial of the media's motion to quash the court rule subpoenas.The court also ruled that the investigative subpoenas provisionally issued on April 14, 1999, were contrary to the statute; those subpoenas were therefore quashed.

On April 26, 1999, this Court denied the media's application for leave to appeal.However, our Supreme Court, in lieu of granting leave to appeal, vacated the circuit court's order of April 22, 1999, and the district court's orders of April 9 and 13, 1999, and ruled that the "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).The Supreme Court 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."

On May 19, 1999, the district court heard oral arguments on the prosecutor's request for investigative subpoenas under M.C.L. § 767A.1 et seq.;MSA 28.1023A(1)et seq.The district court denied the media's motion to quash those subpoenas, holding that there is no qualified privilege for noninformant material and that the statute does not protect material regarding a felony obtained directly by a reporter while reporting.The media appealed, and the circuit court held a hearing on this matter on June 23, 1999.The circuit court reversed the decision of the district court and quashed the investigative subpoenas, reasoning that "the statute unambiguously exempts members of the news gathering profession while they are pursuing their profession, with one or two exceptions which are not here pertinent."However, the circuit court affirmed the district court's order "insofar as it denied [the media's]Motion to Quash on the basis of a First Amendment privilege."This Court subsequently granted the prosecutor's application for leave to appeal.

We are faced with the question whether the circuit court erred in quashing the investigative subpoenas pursuant to M.C.L. § 767A.6(6);MSA 28.1023A(6)(6).The parties proffer opposing interpretations of subsection 6, and, that being the issue central to this appeal, we must decide which, if either, of these interpretations is correct.

Statutory interpretation and application is a question of law that is reviewed de novo by this Court.People v. Webb,458 Mich. 265, 274, 580 N.W.2d 884(1998).The primary purpose of statutory interpretation is to ascertain and effectuate the intent of the Legislature.Id. at 273-274, 580 N.W.2d 884;Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc.,456 Mich. 511, 515, 573 N.W.2d 611(1998).When determining the intent of the Legislature, this Court must first look to the specific language of the statute.People v. Borchard-Ruhland,460 Mich. 278, 284, 597 N.W.2d 1(1999).If the plain and ordinary meaning of the statute's language is clear, judicial construction is inappropriate.Id.However, if reasonable minds can differ regarding the statute's meaning, judicial construction is appropriate.Adrian School Dist. v. Michigan Public School Employees' Retirement System,458 Mich. 326, 332, 582 N.W.2d 767(1998).With these principles in mind, we turn to the statutory chapter providing for investigative subpoenas, M.C.L. § 767A.1 et seq.;MSA 28.1023A.1 et seq., and we look at the plain language of the subsection excepting the media, M.C.L. § 767A.6(6);MSA 28.1023A(6)(6).

MCL 767A.1 et seq.;MSA 28.1023A.1 et seq. governs the use of investigative subpoenas by prosecuting attorneys.Under the statutes, a prosecuting attorney may petition the district court or the circuit court for authorization to issue subpoenas to investigate the commission of a felony.MCL 767A.2(1);MSA 28.1023A(2)(1).The court may then authorize the prosecutor to issue an investigative subpoena if the judge determines that there is reasonable cause to believe a felony has been committed and that there is reasonable cause to believe that the person who is the subject of the investigative subpoena may have knowledge concerning the commission of a felony or the items sought are relevant to investigate the commission of a felony.MCL 767A.3(1);MSA 28.1023A(3)(1).Once served, the subject of an investigative subpoena must appear before the prosecuting attorney and answer questions concerning the felony being investigated or present any physical evidence that the subject is required to produce.MCL 767A.5(1);MSA 28.1023A(5)(1).MCL 767A.6;MSA 28.1023A(6) sets forth the procedure to be used when a person refuses to produce any evidence sought by investigative subpoena and identifies certain circumstances under which disclosure of information cannot be compelled.Subsection 6, the provision 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.[MCL 767A.6(6);MSA 28.1023A(6)(6).]

The circuit court held that issuance of the statutorily created investigative subpoenas sought by the prosecutor in this case was inappropriate.The court found that the second sentence of subsection 6"unambiguously exempts members of the news gathering...