Matheson v. Bangor Pub. Co.

• Decision Date: 28 May 1980
• Citation: 414 A.2d 1203
• Parties: 6 Media L. Rep. 1481 Jean MATHESON v. The BANGOR PUBLISHING COMPANY, d/b/a The Bangor Daily News and V. Paul Reynolds.
• Court: Maine Supreme Court

Page 1203

414 A.2d 1203

6 Media L. Rep. 1481

Jean MATHESON v. The BANGOR PUBLISHING COMPANY, d/b/a The Bangor Daily News and V. Paul Reynolds.

Supreme Judicial Court of Maine.

May 28, 1980.

Kobritz & Hamilton, Harold C. Hamilton (orally), Bangor, for plaintiff.

Eaton, Peabody, Bradford & Veague, Bernard J. Kubetz (orally), Bangor, for defendants.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ.

PER CURIAM.

This report under M.R.Civ.P. 72(c) seeks our interlocutory review of a Superior Court ruling that defendant Reynolds in a discovery deposition must reveal the identity of a source of information he allegedly consulted prior to writing an editorial for the Bangor Daily News. Since we conclude the constitutional issue attempted to be raised by the parties is not appropriate for us to address on this record and at this stage of the proceeding, we discharge the report as improvident.

This report comes to us on an agreed statement of facts. Plaintiff Jean Matheson brought this action in the Superior Court, on behalf of herself and her thirteen-year-old daughter, Jenny Selk, for alleged invasion of privacy by an editorial entitled "An extra kid" written by defendant Reynolds and published on June 12, 1978, by the Bangor Daily News. ¹ The Matheson complaint set forth two separate counts, based apparently on sections 652D ("Publicity Given to Private Life") and 652E ("Publicity Placing Person in False Light"), respectively, of the Restatement (Second) of Torts (1976). Count I alleged that the matter publicized by the editorial was of a kind that would be highly offensive to a reasonable person and that was not of legitimate concern to the public. Count II alleged that the editorial placed the mother and daughter before the public in a false light, which would be highly offensive to a reasonable person, and that defendant Reynolds had knowledge of or acted in reckless disregard as to the false light in which they would be placed. In plaintiff's view the Bangor Daily editorial placed her and her daughter in a false light by suggesting that Jenny was an extra or unwanted child, who felt unloved, and by suggesting that Jenny's mother did not love or properly care for her.

After defendants' motion for summary judgment had been denied by one Superior Court justice, plaintiff's counsel took the deposition of defendant Reynolds and of Mr. Banfield, the copy desk editor. During his deposition, Mr. Reynolds stated that before writing the editorial he had confirmed the accuracy and legitimacy of Jenny's advertisement by speaking to a person who knew plaintiff and her daughter. Mr. Reynolds refused to disclose the identity of his source or the conversations he had had with other members of the newspaper's editorial board concerning the editorial. Mr. Banfield also refused to answer questions regarding the editorial process. Plaintiff thereupon moved for an order requiring "the deposees to answer Plaintiff's questions."

A second Superior Court justice heard plaintiff's motion and at the end of an opinion discussing only the question whether Mr. Reynolds must disclose his source, stated "Plaintiff's Motion is hereby GRANTED." He made no specific order compelling discovery. Cf. State v. Baker, Me., 390 A.2d 1086, 1089 (1978). While describing the source's identity as "crucial" to plaintiff's burden on her "false light" claim of establishing that defendants had acted with knowledge or in reckless disregard of the editorial's falsity, the Superior Court justice specifically stated that he did not "intimate that the evidence is sufficient for the jury to decide (that) the editorial suggests what Plaintiff claims, and hence that it (i. e., the jury) could even reach the issue of Defendant Reynolds' 'actual malice'." The Superior Court's decision was silent as to plaintiff's questions to both deposees regarding conversations occurring during the editorial process.

Defendants moved to report the case to this court on the ground that Reynolds would be "irreparably harmed" unless he could have an interlocutory review concerning the disclosure of a confidential source. The Superior Court ordered the report under M.R.Civ.P. 72(c) because there was no established precedent in Maine involving compelled disclosure in an invasion of privacy action of a journalist's confidential source. The parties prepared an agreed statement as the record on report that included neither the entire materials submitted to the first Superior Court justice on defendants' summary judgment motion nor his ruling on that motion beyond the mere docket entry of denial.

The single question, which the parties have abstracted from the case in an attempt to get a binding Law Court decision even before discovery is complete and the case in order for trial in the Superior Court, arises from defendants' claim of a qualified privilege protecting journalists' confidential sources. Defendants argue that the claimed privilege is grounded in the freedom-of-the-press clauses of the federal First Amendment and of Article I, § 4 of the Maine Constitution. On the other hand, plaintiff cites persuasive authority to the contrary, including Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115 (1979), which stated:

Evidentiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances. . . . "(E)xceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth."

Thus, the parties press this court to make the difficult resolution of a conflict between defendants' First Amendment rights and plaintiff's interest in the fair administration of justice.

Certain fundamental principles of appellate practice lead us to decline that task under the circumstances of this report. We have stated repeatedly that "the Law Court retains power to make its own independent determination whether in all the circumstances of a given case its decision 'on report' would be consistent with the Court's basic function as an appellate tribunal." State v. Foley, Me., 366 A.2d 172, 173 (1976). Accord, Gendron v. Pawtucket Mutual Ins. Co., Me., 409 A.2d 656, 660 n.10 (1979); State v. Placzek, Me., 380 A.2d 1010, 1012 (1977). Report of a question of law prior to final disposition of the case by the Superior Court is a departure from the usual "final judgment" rule barring piecemeal appeals and should be used only on extraordinary occasions, so that the Law Court will not be compelled to act as an "advisory board for the direction of business of the court at nisi prius." Fidelity & Casualty Co. v. Bodwell Granite Co., 102 Me. 148, 152, 66 A. 314, 316 (1906). Thus, our "power to discharge a report inheres not only in our right and interest to control our own docket, but in our general powers of superintendence and supervision over inferior...