Miller v. Superior Court

• Decision Date: 01 November 1999
• Docket Number: No. S073888.,S073888.
• Citation: 21 Cal.4th 883,89 Cal.Rptr.2d 834,986 P.2d 170
• Court: California Supreme Court
• Parties: Ellen MILLER, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent; The People, Real Party in Interest.

89 Cal.Rptr.2d 834

21 Cal.4th 883

986 P.2d 170

Ellen MILLER, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent;

The People, Real Party in Interest.

No. S073888.

Supreme Court of California.

November 1, 1999.

Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Samuel T. McAdam; Riegels Campos & Kenyon and Charity Kenyon, Sacramento, for Petitioner. Crosby, Heafey, Roach & May, John E. Carne, Kathy M. Banke, David E. Durant, Oakland, and Helen N.E. Posnansky, for California Newspaper Publishers Association, California First Amendment Coalition, The Society of Professional Journalists, Northern California Chapter, The Copley Press, Inc., Freedom Communications, Knight Ridder, McClatchy Newspapers, Inc., the Ontario Bulletin, the San Francisco Examiner, the San Francisco Chronicle, the San Bernardino Sun, the Santa Rosa Press Democrat and The Times Mirror Company as Amici Curiae on behalf of Petitioner.

Johanson & Robinson, Sacramento, and Steve H. Johanson, for Hearst-Argyle Television, Inc., A.H. Belo Corporation and Channel 58, Inc., as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, Edmund D. McMurray, Margaret Venturi and Susan J. Orton, Deputy Attorneys General, for Real Party in Interest.

Gil Garcetti, District Attorney (Los Angeles), George M. Palmer, Head Deputy District Attorney, and Brentford J. Ferreira, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Real Party in Interest.

MOSK, J.

In 1990 the voters of this state enacted a constitutional amendment as part of Proposition 115 affirming that in criminal cases the People of the State of California have "the right to due process of law" (Cal. Const., art. I, § 29).¹ In the present case, we consider whether the assertion of that state constitutional right by a district attorney can serve as a justification for holding a newsperson in contempt for refusing to surrender unpublished information, in spite of the newsperson's immunity from contempt for such refusal expressly provided in article I, section 2, subdivision (b) (hereinafter article I, section 2(b)), and reaffirmed in article I, section 28, subdivision (d) (hereinafter article I, section 28(d)). We conclude that a newsperson cannot be held in contempt under these circumstances. We therefore reverse the judgment of the Court of Appeal.

I. FACTS AND PROCEDURAL HISTORY

The pertinent facts of this case are not in dispute and were largely set forth in SCI-Sacramento, Inc. v. Superior Court (1997) 54 Cal.App.4th 654, 657-659, 62 Cal. Rptr.2d 868:

"KOVR is a television station engaged in the gathering, receiving and processing of information for communication to the public. After learning that one Anthony Lee DeSoto had confessed to sheriffs investigators that he had killed his cellmate, KOVR news reporter Tom Layson conducted a videotaped interview with DeSoto in the San Joaquin County jail.

"Portions of the interview were broadcast on KOVR news programs on March 19 and March 20, 1996.

"In April 1996, the People issued a subpoena duces tecum for KOVR's custodian of records to `BRING TAPE RECORDING OF THE ENTIRE INTERVIEW AT THE SAN JOAQUIN COUNTY JAIL OF DEFENDANT ANTHONY LEE DE[S]OTO ON 3/19 or 3/20/96, TO INCLUDE PORTIONS OF BROADCAST AS WELL AS PORTIONS THAT WERE NOT BROADCASTED [sic].' The subpoena indicated no appearance was required if the materials were turned over to the prosecution.

"KOVR submitted only the broadcast portions of the interview, invoking the ... shield law (Cal.Const., art. I, § 2; Evid. Code, § 1070)[²] as to the `outtakes' which were not broadcast. The prosecutor reiterated her demand for the unpublished materials.

"In June 1996, KOVR moved to quash the subpoena on the grounds of the ... shield law. KOVR's motion requested that the subpoena be quashed but asked in the alternative: `If the court should determine that the District Attorney has established and produced evidence of a colorable interest in this matter, KOVR requests that the court review in camera those portions of the videotape claimed to be essential to protecting the interests of the People. Such in camera review of the unpublished material, with counsel for the media present, would be essential to perform the balancing of the nature described in Delaney [v. Superior Court (1990) 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934]. [H] If the court should determine that ... the District Attorney has established a right to production of the portions of the videotape that have not been broadcast, then in camera review is requested without prejudice to the right of KOVR's custodian of records to review the court's ruling and to decide whether or not to disclose the unbroadcast portions of the videotape or to suffer a judgment of contempt.' ...

"At the July 8, 1996, hearing on the motion to quash, the trial court stated (in concurrence with the position taken in the People's opposition to the motion to quash) that the case law requires in camera review only when the material sought to be shielded under the newspersons' shield law is confidential or sensitive—elements not present in the instant case, where KOVR has not contended the unpublished tape is confidential or sensitive. The court further stated that notwithstanding this point of law, the court would exercise its discretion and review the tape in camera. The court asked KOVR's counsel if she had the tape (exhibit C) with her. She did, and she turned it over to the court. The court conducted the in camera review in the presence of KOVR's counsel, defendant, and defense counsel. KOVR's counsel stated she had no objection to the presence of the defense `[a]s long as it would not constitute a waiver of the Shield Law....' The trial court agreed.

"On July 19, 1996, the trial court issued an order denying KOVR's motion to quash, ordering that the videotape (exhibit C) be unsealed (but staying its order), and directing KOVR to provide a copy of the unedited interview to the prosecution. There are two versions of the court order — a sealed version which has not been provided to the People, and an unsealed version. Both versions of the order stated in part: `The court hereby denies KOVR's Motion to Quash and orders that EXHIBIT C be unsealed, but stays the execution of that order until the next hearing on this matter set for July 23, 1996. KOVR is further ordered to provide a complete copy of the unedited interview in continuous sequence at the July 23, 1996 hearing.'" (SCI-Sacramento, Inc. v. Superior Court, supra, 54 Cal.App.4th at pp. 657-659, 62 Cal.Rptr.2d 868,

fns. and italics omitted.)

The stay was extended when KOVR indicated its intention to petition the Court of Appeal for an extraordinary writ setting aside the superior court's ruling. That petition was filed in that court on August 14, 1996. In SCI-Sacramento, Inc. v. Superior Court, supra, 54 Cal.App.4th 654, 62 Cal.Rptr.2d 868, the Court of Appeal concluded the petition was premature as there had been no adjudication of contempt. The court therefore did not reach the merits of the dispute but issued a peremptory writ of mandate directing the superior court to vacate its order and "to enter a new order giving petitioners the opportunity to choose to be held in contempt or to disclose the disputed materials." (Id., at pp. 667-668, 62 Cal.Rptr.2d 868.) The previously issued stay was dissolved. (Id., at p. 668, 62 Cal.Rptr.2d 868.)

At the ensuing hearing, the superior court ordered petitioner, KOVR's news director, Ellen Miller, to turn over to the prosecution the unedited videotape. Petitioner refused to do so and was adjudged in contempt. The court ordered petitioner jailed until the tape was produced or the criminal proceedings concluded. She was also ordered to pay the reasonable attorney fees and costs incurred in connection with the contempt proceedings. However, the court stayed its order to allow filing of a petition for extraordinary relief in the Court of Appeal. Petitioner filed such a petition for "a writ of habeas corpus and/or review," which the court treated as a writ of prohibition. The Court of Appeal issued an alternative writ of prohibition and stayed the judgment of contempt.

The Court of Appeal, relying on article I, section 29, giving "the people of the State of California ... the right to due process of law," and on our decision in Delaney v. Superior Court (1990) 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934 (Delaney), concluded that a journalist's immunity from contempt is not absolute when the prosecution makes a showing of need for information the journalist possesses. Purportedly following our Delaney decision, the court employed a balancing test, weighing the relative importance of the prosecution's interest in uncovering the information and the news organization's interest in keeping it concealed. The court determined that the People had shown the potential importance of the unpublished portions of the interview for the criminal trial against DeSoto and the lack of alternative sources. The court also determined that the concealment of the information was of relatively less importance to the news organization, because it was not protecting a confidential source. The court accordingly upheld the trial court's contempt order, denied the writ of prohibition, and lifted the stay.

We granted review and further stayed enforcement of the contempt order.

II. DISCUSSION

The shield law, article I, section 2, subdivision (b), enacted in its constitutional form in 1980, provides that a newsperson "shall not be adjudged in contempt ... for refusing to disclose the source of any information procured while so connected or employed [as a newsperson] ... or for refusing to disclose any unpublished...