KSDO v. Superior Court

• Decision Date: 07 October 1982
• Citation: 186 Cal.Rptr. 211,136 Cal.App.3d 375
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 Media L. Rep. 2360 KSDO, et al., Petitioners, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; Mervyn FEINSTEIN, et al., Real Parties in Interest. Civ. 27868.

Page 211

186 Cal.Rptr. 211

136 Cal.App.3d 375, 8 Media L. Rep. 2360

KSDO, et al., Petitioners, v. The SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent Mervyn FEINSTEIN, et al., Real Parties in Interest.

Civ. 27868.

Court of Appeal, Fourth District, Division 2, California.

Oct. 7, 1982.

As modified Oct 19, 1982.

Higgs, Fletcher & Mack, Dennis P. Hickman and Michael L. Ward, San Diego, for petitioners

Herbert Hafif, Gary E. Cripe, Claremont, and Ai Woodward, Los Angeles, for real parties in interest.

No appearance for respondent.

OPINION

TROTTER, Associate Justice.

This case involves the scope of a newsperson's privilege not to disclose confidential sources or unpublished material. Petitioners, defendants below, seek a writ to prevent the trial court from enforcing a discovery order requiring defendants to disclose certain unpublished information.

FACTS

Real parties in interest, plaintiffs below, are members of the Riverside Police Department. They filed a complaint for libel and violation of civil rights, alleging the following:

That defendant Clark, the Riverside County Sheriff, initiated an investigation of the Riverside Police Department to prove the police department was engaging in illegal conduct; that Sheriff Clark had no knowledge or suspicion of any wrongdoing, but initiated the investigation in hopes of finding something, solely for the purpose of helping Clark maintain his position as sheriff; and that as a result of the investigation, the sheriff's department caused to be disseminated, broadcast, and published a report that the plaintiffs and other members of the Riverside Police Department were involved in drug trafficking between the United States and Mexico, including the use of official police cars for smuggling drugs across the border.

Defendant KSDO Radio and Hal Brown, a news reporter for KSDO, broadcast the following report:

"KSDO News has learned that an investigation is being conducted into allegations of widespread corruption involving two Southern California law enforcement agencies, one in the San Diego area and an unidentified bail bondsman. According to a source close to the investigation the probe involves alleged corruption in the handling of a major heroin smuggling case by one or [more] members of the Drug Enforcement Administration based in National City and the alleged transportation of large amounts of heroin from Tijuana to Riverside by city police in official cars. The probe is said by sources to reach in the highest levels of the Riverside P.D."

The Riverside Press-Enterprise, essentially repeated the KSDO broadcast:

"Radio station KSDO, quoting unidentified law enforcement officials, accused Riverside police officers of using city police cars [for] transporting heroin from Mexico.

"In his report, radio newsman Hal Brown charged that 'corruption reaches into [the] highes[t] level[s] of [the] Riverside Police Department.' " (Riverside Press-Enterprise, April 24, 1980, morning edition.)

"The report also said the RPD was being investigated for helping the federal Drug Enforcement Administration cover up the alleged involvement of a Riverside bail bondsman in a Mexican drug smuggling ring." (Riverside Press-Enterprise, April 24, 1980, evening edition.)

"[T]he broadcast, aired April 23, on all news radio station KSDO, quoted ... unnamed law enforcement sources as saying Riverside police officers had used city police cars to transport heroin from Mexico and thwarted an investigation into a bail bondsman's involvement in drug smuggling." (Riverside Press-Enterprise, May 20, 1980.)

During plaintiffs' deposition of defendant Brown, the KSDO reporter who investigated the story, Brown revealed the sources of his information which led to the news report and the broadcast on KSDO radio. Plaintiffs then brought a motion to produce documents seeking Brown's notes and memoranda of conversations between Brown and certain named persons.

Defendants Brown, KSDO and Gannett Co., Inc. opposed the motion on the ground that the notes and memoranda were privileged, based on Evidence Code section 1070, California Constitution, article I, section 2, and, parenthetically, the United States Constitution.

The trial court granted the motion, ordering defendants to produce Brown's notes and memoranda, holding that: (1) in other cases applying the shield law the newsperson was not a party, but had information relevant to a pending criminal case, whereas in the instant case the newsperson was a party to a libel action; (2) Evidence Code section 1070 and California Constitution, article I, section 2 simply prohibit holding the newsperson in contempt but do not proscribe other sanctions; (3) by disclosing the sources of his information Brown waived whatever privilege he may have had in the notes; and, (4) plaintiffs would have no other way to get Brown's notes except from Brown or his employer, so that there was no alternate source for plaintiffs to get the information sought.

Defendants then brought a petition for a writ of mandate/prohibition to prevent enforcement of the discovery order.

DISCUSSION

I

THE CALIFORNIA "SHIELD LAW"

The description "shield law" conjures up visions of broad protection and sweeping privilege. The California shield law, however, is unique in that it affords only limited protection. It does not create a privilege for newspeople, rather it provides an immunity from being adjudged in contempt. This rather basic distinction has been misstated and apparently misunderstood by members of the news media and our courts as well. A brief review of the history of the California shield law seems appropriate. In 1935 the California Legislature passed the first shield law. (Stats.1935, ch. 532, § 1, pp. 1608-1610.) Code of Civil Procedure section 1881, subdivision 6, provided that newspaper employees could not be adjudged in contempt for refusal to disclose sources to courts or legislative or administrative bodies. Subsequent amendments extended the immunity to employees of radio and television stations, press associations and wire services. (Stats.1961. ch. 629, § 1, pp. 1797-1798.) Former Code of Civil Procedure section 1881 in addition to the immunity for newspersons also contained other sections that dealt with privileges against testifying (e.g., husband and wife, attorney and client, etc.). Therein the confusion began. In 1965 the Legislature transferred the privilege sections of the California Code of Civil Procedure to the Evidence Code and the former subdivision 6 of section 1881 of the Code of Civil Procedure became Evidence Code section 1070 but was separated from all of the other former provisions of Code of Civil Procedure section 1881 which contained true privileges. (Stats.1965, ch. 299, § 2, pp. 1297, 1323-1335.) The California Law Revision Commission which was responsible for the initial drafting of the Evidence Code noted: "Despite the absence of reliable evidence in the form of legislative history or judicial interpretation, the effect of the statutory privilege in California appears to be a carte blanche grant of an absolute and unqualified privilege to newsmen to refuse to disclose the source of any information procured for and used in the protected news media." (Tent. Recommendation and Study Relating to the Uniform Rules of Evidence, art. V, Privileges (Feb. 1964); 6 Cal.Law Revision Com.Rep. (1964), pp. 481, 484.) Despite the strong language of the commission and its intended grant of privilege, the Legislature clearly rejected the concept of privilege and appended a comment to section 1070 which states: "Section 1070 continues without change the provisions of subdivision 6 of Code of Civil Procedure Section 1881. [p] It should be noted that Section 1070, like the existing law, provides an immunity from being adjudged in contempt; it does not create a privilege. Thus, the section will not prevent the use of other sanctions for refusal of a newsman to make discovery when he is a party to a civil proceeding." (Assembly Committee on Judiciary Comment to Evid. Code, § 1070, 29B West's Annot. Code (1966 ed.) p. 655; emphasis supplied.) Amendments to Evidence Code section 1070 in 1971, ¹ 1972, ² and 1974 ³ extended the coverage of the section to newspersons who were no longer employed, to a broader spectrum of judicial, legislative or administrative proceedings, and to magazine and other periodical reporters, and unpublished information, background notes, or radio or television "outtakes."

In its present form, Evidence Code section 1070 provides as follows:

"(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

"(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

"(c) As used in this section, 'unpublished information' includes information not disseminated to the public by the person from whom...