Matera v. Superior Court In and For County of Maricopa, 1

• Decision Date: 23 January 1992
• Docket Number: CA-SA,No. 1,1
• Citation: 825 P.2d 971,170 Ariz. 446
• Parties: , 19 Media L. Rep. 2053 Dary MATERA, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Thomas Dunevant, III, a judge thereof, Respondent Judge, The STATE of Arizona and Carolyn Walker, Real Parties in Interest. 91-228.
• Court: Arizona Court of Appeals

Page 971

825 P.2d 971

170 Ariz. 446, 19 Media L. Rep. 2053

Dary MATERA, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Thomas Dunevant, III, a judge thereof, Respondent Judge The STATE of Arizona and Carolyn Walker, Real Parties in Interest.

No. 1 CA-SA 91-228.

Court of Appeals of Arizona Division 1, Department C.

Jan. 23, 1992.

Review Denied March 17, 1992.

[170 Ariz. 447] Brown & Bain, P.A. by Daniel C. Barr, Grant A. Koppelman, Phoenix, for petitioner.

Miller & Miller, Ltd. by Murray Miller, Richard K. Miller, Phoenix, for real parties in interest.

OPINION

GRANT, Presiding Judge.

This special action arose following the trial court's order refusing to quash a subpoena served on petitioner Dary Matera (Matera). We accepted jurisdiction because the case presents a novel question concerning an Arizona statute that has not been fully construed or interpreted by our appellate courts, A.R.S. § 12-2214. ¹ The issues presented are purely questions of law, and are of great interest and importance statewide. University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 581, 667 P.2d 1294, 1296 (1983). Petitioner has no adequate plain and speedy remedy by direct appeal, and thus special action jurisdiction is appropriate. Rule 1, Arizona Rules of Special Action, 17B A.R.S.

Facts and Procedural History

The present case arose in the aftermath of the "AzScam" sting operation. Carolyn Walker (Walker), the real party in interest in this action, was one of several Arizona legislators indicted following an undercover operation engineered by Arizona law enforcement agencies. Walker, one of the targets of the sting, is now a defendant in a criminal case and is involved in a civil RICO action, both resulting directly from the undercover efforts.

Matera is an author currently involved in writing a book about Joseph Stedino, the primary undercover figure in the sting. Walker learned of Matera's work during a deposition of Stedino, and subsequently subpoenaed Matera's notes and other documents collected during Matera's preparation of the book.

Matera asked the trial court to quash the subpoena. The trial court, by minute entry order, denied the motion to quash and Matera filed this special action. By written order, we accepted jurisdiction and denied relief with an opinion to follow. This is that opinion.

Discussion

Matera claims the trial court abused its discretion in denying the motion to quash. Matera relies on A.R.S. § 12-2214 (the "Media Subpoena Law") as well as the Arizona and United States Constitutions.

A.R.S. § 12-2214(A) states in relevant part:

A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought ...

Subsection B of the statute states that "[a] subpoena served on a person described in Subsection A without the required affidavit attached to it has no effect."

In the present case, Walker did not comply with the affidavit requirement of the Media Subpoena Law, contending that compliance was unnecessary because Matera was not a "person engaged in the gathering, reporting, writing, editing, publishing or broadcasting news to the public." The trial court correctly focused on this language as dispositive of the motion to quash. If Matera fits the description contained in the statute, the subpoena is of no effect and should have been quashed. Conversely, if Matera's efforts do not bring him within the ambit of the statute, as the trial judge held, the subpoena is valid and Matera must produce the subpoenaed materials.

Our primary task is to give effect to legislative intent. Carrow Co. v. Lusby, 167 Ariz. 18, 20, 804 P.2d 747, 749 (1990); Alexander v. Fund Manager, 166 Ariz. 589, 591, 804 P.2d 122, 124 (App.1990). In attempting to divine legislative intent, we must give the language of the statute its plain and ordinary meaning. Lusby, 167 Ariz. at 20, 804 P.2d at 749. The trial judge held that the plain meaning of the language of § 12-2214 militates against application of the statute to Matera. Walker argues, and the trial judge agreed, that the statute should apply to members of the "news media" as that term is commonly understood. We agree.

"News" has been defined as "a report of recent events; material reported in a newspaper or news periodical or on a newscast; matter that is newsworthy." Webster's Ninth New Collegiate Dictionary 796 (1984). Applying this definition to § 12-2214, we conclude that Matera was not actively engaged in the gathering, reporting, etc. of "news."

We note that the legislative history of the Media Subpoena Law, while not abundant, provides some guidance. For example, the title of § 12-2214 was originally "Third party subpoenas," but was changed before passage to the current title, "Requirements for subpoena of media witnesses." The legislative history also reveals that when the committees of the senate and house of representatives were considering the Media Subpoena Law, the only witnesses who testified concerning the law were employees of Arizona's daily newspapers and television news stations. These facts suggest that § 12-2214 was intended to apply to persons who gather and disseminate news on an ongoing basis as part of the organized, traditional, mass media.

We hold that the statute's application is limited to persons engaged in the gathering and dissemination of news to the public on a regular basis. Our examination of the language of the statute and the legislative history leads us to conclude that the purpose of the Media Subpoena Law is to protect members of the media from burdensome subpoenas and broad discovery "fishing expeditions" that would interfere with the ongoing business of gathering and reporting news to the public. The statute balances the needs of media personnel against the needs of litigants, tipping the balance in favor of interference with the process of newsgathering only upon a showing of need, proven by affidavit. The statute is not a "shield" law or broad protection for newsgatherers, as Matera argues. We hold that the statute was not designed to protect the information collected, but rather was designed to aid a specific class of persons--members of the media--in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants. See Bartlett v. Superior Court, 150 Ariz. 178, 183, 722 P.2d 346, 351 (App.1986).

Matera's second argument focuses on the "qualified reporter's privilege" recognized by the United States Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) and its progeny. See Marcus, The Reporter's Privilege: An Analysis of the Common Law, Branzburg v. Hayes, and Recent Statutory Developments, 25 Ariz.L.Rev. 815 (1983) for a comprehensive critical analysis of Branzburg. Relying on two federal appellate court decisions, von Bulow v. von Bulow, 811 F.2d 136 (2d Cir.1987) and Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir.1977), Matera argues that the information he gathered while preparing his book is protected by the constitutional privilege.

The von Bulow court held that information gathered by an author for potential publication in book form may, under certain circumstances, be protected by the First Amendment and therefore not subject to subpoena in a civil action where the author was not a party to the lawsuit. 811 F.2d at 144-145. However, the von Bulow court refused to apply the privilege to the facts before it, since the author had no intent to publish the information at the time it was gathered. Id. at 145-146.

Silkwood applied the privilege to information gathered in preparation for the production of a fact-based motion picture. The court held that the information and sources were protected under the First Amendment privilege, unless the party requesting the information could satisfy the court that their need for the information outweighed the reporter/newsgatherer's need for confidentiality. 563 F.2d at 438.

In part, these cases stand for the basic proposition that under Branzburg the states and the federal courts have the freedom to create, expand or restrict protection for publishers as they see fit. In fact, the Branzburg Court expressly stated this notion:

At the federal level, Congress has freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil...