Miller v. Superior Court

• Decision Date: 26 August 1998
• Docket Number: No. C027176,C027176
• Citation: 66 Cal.App.4th 334,77 Cal.Rptr.2d 827
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 66 Cal.App.4th 334 66 Cal.App.4th 334, 26 Media L. Rep. 2324, 98 Cal. Daily Op. Serv. 6693, 98 Daily Journal D.A.R. 9187 Ellen MILLER, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent, The People, Real Party in Interest.

Page 827

77 Cal.Rptr.2d 827

Previously published at 66 Cal.App.4th 334

66 Cal.App.4th 334, 26 Media L. Rep. 2324,

98 Cal. Daily Op. Serv. 6693,

98 Daily Journal D.A.R. 9187

Ellen MILLER, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent The People, Real Party in Interest.

No. C027176.

Court of Appeal, Third District, California.

Aug. 26, 1998.

Review Granted Nov. 24, 1998.

Charity Kenyon, Samuel T. McAdam, Diepenbrock, Wulff, Plant & Hannegan, Sacramento, for Petitioner.

John E. Carne, David E. Durant, Crosby, Heafey, Roach & May, Oakland, Steven H. Johnanson, Johanson & Robinson, Sacramento, Amici Curiae for Petitioner.

No appearance for Respondent.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Edmund D. McMurray and Margaret Venturi, Supervising Deputies Attorney General, Susan J. Orton, Deputy Attorney General, for Real Party in Interest.

PUGLIA, Presiding Justice.

In virtually identical language, Evidence Code section 1070 and article I, section 2, subdivision (b) of the State Constitution immunize members of the print and electronic media from an adjudication of contempt for refusing to disclose either the source of information or unpublished information obtained in the course of their news gathering activities. The question before us is whether this media "shield law" provides immunity where the interests it protects are outweighed by the People's right, protected by due process, to evidence critical to a criminal prosecution.

Petitioner Ellen Miller, the news director and custodian of records for SCI-Sacramento, Inc., a Maryland corporation doing business as KOVR-TV (hereafter "KOVR"), petitions this court for a writ of prohibition to enjoin enforcement of a judgment of contempt rendered following her refusal to comply with a court order to produce unpublished parts of a videotaped interview conducted by KOVR with a defendant charged with murder. The interview occurred shortly after the murder. The People seek the unpublished parts of the tape as evidence to prove the defendant's guilt. We conclude the People have a due process right to the unpublished information sought because the circumstances supporting their right to disclosure outweigh the interests protected by the shield law. We shall therefore deny the petition.

I

We take the facts verbatim from our opinion in SCI-Sacramento, Inc. v. Superior Court (1997) 54 Cal.App.4th 654, 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 sheriff's 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 [media] shield law (Cal. Const., art. I, § 2; Evid.Code, § 1070) 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 [media] 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) ]. [p] 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.' [Italics original.]

"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 [media] 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. omitted.)

The stay was extended when KOVR indicated its intention to petition this court for an extraordinary writ setting aside the superior court's ruling. That petition was filed in this court on August 14, 1996. In SCI-Sacramento, Inc. v. Superior Court, supra, 54 Cal.App.4th 654, 62 Cal.Rptr.2d 868, we concluded the petition was premature as there had been no adjudication of contempt. We therefore did not reach the merits of the dispute. We 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 material." (SCI-Sacramento, Inc. v. Superior Court, supra, 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 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 is produced or the criminal proceedings conclude. 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 this court.

Petitioner initiated this proceeding and we issued an alternative writ of prohibition and stayed the judgment of contempt pending further order of this court.

II

In general terms, the media shield law is designed "to protect a newsperson's ability to gather and report the news." (Delaney v. Superior Court, supra, 50 Cal.3d at p. 806, fn. 20, 268 Cal.Rptr. 753, 789 P.2d 934.) Underlying the law is a belief that forced disclosure of sources and unpublished information will ultimately inhibit the free flow of information so beneficial to the public. (Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 217, 124 Cal.Rptr. 427.)

In Delaney v. Superior Court, supra, 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934 (hereafter Delaney ), the court recounted the history of the media shield law. Under common law, members of the media had no right to refuse to disclose confidential sources. In 1935, the Legislature passed the first shield law, which provided that newspaper employees could not be adjudged in contempt for refusing to disclose their sources to courts or legislative or administrative bodies. This provision was subsequently extended to employees of other media, including television, and in 1967, these statutory provisions were transferred from the Code of Civil Procedure to Evidence Code section 1070 (hereinafter "section 1070"). (Delaney v. Superior Court, supra, at pp. 794-795, 268 Cal.Rptr. 753, 789 P.2d 934.)

The shield law was later expanded in response to the United States Supreme Court decision in Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646 . As explained in Delaney: "In [the Branzburg decision in] 1972, a plurality of the United States Supreme Court concluded that the First Amendment to the federal Constitution does not provide newspersons with even a qualified privilege against appearing before a grand jury and being compelled to answer questions as to either the identity of news sources or information received from those sources. The high court made clear, however, that state legislatures are ...