Marks v. Vehlow

• Citation: 671 P.2d 473,105 Idaho 560
• Decision Date: 21 October 1983
• Docket Number: No. 13938,13938
• Parties: , 9 Media L. Rep. 2361 Ellen MARKS, Petitioner, v. Honorable Karen J. VEHLOW, Magistrate of the Fourth Judicial District of the State of Idaho, the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada, and the Magistrate's Division Thereof, Respondent.
• Court: United States State Supreme Court of Idaho

Page 473

671 P.2d 473

105 Idaho 560, 9 Media L. Rep. 2361

Ellen MARKS, Petitioner, v. Honorable Karen J. VEHLOW, Magistrate of the Fourth Judicial District of the State of Idaho, the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada, and the Magistrate's Division Thereof, Respondent.

No. 13938.

Supreme Court of Idaho.

Oct. 21, 1983.

P. Craig Storti and Robert L. Bilow, of Hawley, Troxell, Ennis & Hawley, Howard I. Manweiler, of Manweiler & Bevis, Boise, for petitioner.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for respondent.

DONALDSON, Chief Justice.

Michael Clary was awarded custody of his natural daughter Alysia Clary, a minor child, pursuant to an Arizona divorce decree issued on May 12, 1975. Following the divorce, Mr. Clary and Alysia lived in Nebraska. In the summer of 1980, while the child was visiting with her natural mother Eugenia (Clary) Gilmore, in Idaho, Mrs. Gilmore filed a motion for temporary possession of Alysia in Nebraska. The Nebraska court denied the motion and entered a modified order on September 5, 1980, which required that Eugenia Gilmore return the child to the custody of her natural father pending further investigation and evaluation. The child was not returned and on September 9, 1980, Michael Clary filed a petition for a writ of habeas corpus in the Fourth Judicial District of the State of Idaho, Ada County, seeking a writ commanding Eugenia and Randall Gilmore (her husband) to bring the child before the court. The writ was issued and served on Randall Gilmore on September 9, 1980, commanding that Alysia be brought before Magistrate Vehlow on September 10, 1980.

On September 10, 1980, Randall Gilmore appeared before Magistrate Vehlow without the child. After Gilmore was questioned under oath, the magistrate held him in contempt of court and committed him to jail. The magistrate also issued a warrant for the arrest of Eugenia Gilmore and set a hearing for September 18, 1980, at 9:00 a.m., to review the contempt of Mr. Gilmore. On September 18, 1980, a newspaper, The Idaho Statesman, published an article written by the petitioner, Ellen Marks, a reporter, which related a recent interview concerning the child between Marks and Mrs. Gilmore. Also on September 18, 1980, Marks went to the courthouse to attend the hearing on Mr. Gilmore. While waiting for the proceedings to commence, Marks was served with a subpoena by Mr. Clary's counsel. Shortly after receiving the subpoena, Marks left the courtroom. Thereafter, Mr. Clary's counsel moved for a bench warrant for the arrest of Marks which the magistrate indicated would issue upon written proof of service. Later Marks, by counsel, moved to have the subpoena quashed for ineffective service. The motion to quash was denied and a bench warrant was issued. A motion to quash the bench warrant was filed on September 18, 1980. On September 19, 1980, Marks appeared before the magistrate court. Argument by counsel was made on the motion to quash the warrant and such motion was denied. Marks was called to the witness stand and refused to answer certain questions regarding the whereabouts of the child, Alysia Clary, based upon an assertion of first amendment rights. Following argument to the court, the magistrate found Marks in contempt of court and ordered her incarcerated pending compliance. The order was modified on October 7, 1980, to a fine of $500.00 for each and every day that Marks refused to answer the questions propounded on September 19, 1980. A further order of contempt was filed on October 14, 1980.

Petitioner attempted to appeal the orders of contempt to this Court which attempt was dismissed as being from nonappealable orders.

The contempt sanction continued to run against Marks until receipt by the magistrate court of a stipulation that the child had been returned to the father. A final order was filed on February 2, 1981, which terminated the sanction effective January 26, 1981. Thereafter, Marks filed a petition for a writ of review in this Court. We affirm.

Where orders of contempt are examined under a writ of review ¹ the prime question for determination is whether the inferior tribunal exceeded its jurisdiction. E.g., Dutton v. District Court of Third Judicial District in and for County of Owyhee, 95 Idaho 720, 518 P.2d 1182 (1974); Barnett v. Reed, 93 Idaho 319, 460 P.2d 744 (1969). Our initial inquiry must therefore focus upon whether the magistrate possessed subject matter jurisdiction power to order the contempt sanctions imposed. We will also consider whether there exists a valid newsman's testimonial privilege which should have shielded Marks from the orders of contempt.

I.

An attorney magistrate is a judicial officer of the district court whose jurisdiction is established by legislation, I.C. §§ 1-2208, 1-2210; under the Idaho Constitution, ID. Const. art. 5, § 2; by rule of the Idaho Supreme Court, I.R.C.P. 82; and by the rules of the respective district courts, e.g., 4th Judicial District Court Rule 3.0 (1979). An attorney magistrate may be empowered and clothed with jurisdiction to conduct proceedings in habeas corpus and child custody matters. I.C. § 1-2210.

A writ of habeas corpus was issued and served on Randall Gilmore commanding that Alysia Clary be brought before Magistrate Vehlow on September 10, 1980. At the September 10, 1980, proceeding the magistrate held Gilmore in contempt, ordered him committed to jail, and set a hearing for September 18, 1980. It is argued by Marks that the September 18 hearing was limited to a review of the contempt of Randall Gilmore. ² From this argument and the subsequent voiding of the order of contempt against Gilmore and his discharge from custody by the district court under separate habeas corpus proceedings, Marks contends that there was no jurisdiction to support the September 18 hearing. Without jurisdiction for the September 18 hearing, similarly there would be no jurisdiction for the subsequent proceedings at which Marks was held in contempt. We do not agree. From our review of the record, we conclude that the September 18 hearing was a continuing part of the initial habeas corpus proceeding. ³ We conclude that the magistrate court had proper jurisdiction to conduct the September 18 hearing and the subsequent hearings in furtherance of the habeas corpus proceeding.

II.

Ellen Marks was served with a subpoena for the September 18, 1980, hearing on that date. By counsel, she moved to quash the subpoena which motion was denied. ⁴ Later that same day, upon written return of service, a bench warrant was issued for the arrest of Ellen Marks. A motion to quash the warrant was made, argued on September 19, and denied. Thereafter, Marks was called to the witness stand. During examination, she declined to answer questions directed to the identities of confidential sources and the location of a confidential meeting that she had had with the undisclosed confidential sources. ⁵ The questioning of Marks was aimed at obtaining information about the whereabouts of the child.

The refusal was based upon an assertion that the sources were protected by a qualified newsman's privilege to conceal the identity of confidential sources based upon the first amendment. Magistrate Vehlow recognized no privilege and ordered Marks to answer the questions. Marks refused and Magistrate Vehlow held Marks in contempt and ordered her incarcerated until further order. Marks attempted to appeal this order to this Court on September 26, 1980, which appeal was dismissed. Marks moved for a stay of execution and enforcement of the September 19, 1980, Order of Contempt and Warrant of Commitment which motion following a hearing on October 6, 1980, was denied on October 7, 1980. Marks was found in contempt for refusing to answer the questions propounded on September 19, 1980, and fined $500. Following an October 7 hearing, Magistrate Vehlow entered an order which modified the previous order of contempt as follows:

"IT IS HEREBY ORDERED AND THIS DOES ORDER that the Order of Contempt entered by this Court on September 19, 1980, be modified to provide that the witness, Ellen Marks, shall pay the sum of FIVE HUNDRED & NO/100THS DOLLARS ($500.00) for each and every day she continues to refuse to answer the questions earlier propounded to her at the hearing on September 19, 1980."

On October 14, 1980, following another hearing, Magistrate Vehlow entered another order of contempt which provided:

"THIS COURT DOES ORDER AND THIS DOES ORDER That for each day that Court is in session that Ms. Marks refuses to purge herself of contempt, that she be fined five hundred dollars ($500.00). All fines accruing under this Order of Contempt are due and payable at the first of every month following the acts of contempt excepting the fines ordered on October 6 and October 7, 1980 which are due and payable on October 14, 1980."

Petitioner Marks contends that Magistrate Vehlow had neither the power to impose the contempt sanctions utilized nor the power to modify the September 19, 1980, order of contempt from incarceration to a daily fine. We disagree. We are mindful of petitioner's arguments for a qualified newsman's privilege which if existing would vitiate these orders of contempt. In due course, we will consider the question of a qualified newsman's privilege.

The attorney magistrate in conducting habeas corpus proceedings exercises the judicial power of the State of Idaho. ID. Const. art. 5, § 2; I.C. §§ 1-2208, 1-2210; I.R.C.P. 82. To vindicate his jurisdiction and proper function, the magistrate is vested with the judicial contempt power. While this power has been recognized by statute, Title 7, chapter 6, I.C., its source lies in the Constitution, ID. Const. art. 5, § 2, and the common law, McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913).

I.C. § 1-1603 recognizes that "[e]very court has power: ... 4. To compel obedience to its ......