New York Times Company v. Jascalevich, A-111
| Citation | 99 S.Ct. 11,439 U.S. 1331,58 L.Ed.2d 38 |
| Decision Date | 04 August 1978 |
| Docket Number | No. A-111,A-111 |
| Parties | The NEW YORK TIMES COMPANY and Myron Farber v. Mario E. JASCALEVICH |
| Court | U.S. Supreme Court |
The New York Times and one of its reporters, Myron Farber, have reapplied to me for a stay of an order issued by the Supreme Court of New Jersey on July 25, 1978, after Mr. Justice WHITE denied their initial application on August 1, 1978. 439 U.S. 1317, 99 S.Ct. 6, 58 L.Ed.2d 25.
At issue is the New Jersey Supreme Court's denial of a motion for a stay of civil contempt penalties imposed by the Superior Court of Bergen County in order to coerce the applicants to submit for in camera inspection materials sought by the defendant in a murder trial now in progress. The New Jersey Supreme Court also denied the applicants' motion for direct certification of their appeals from the contempt orders entered by the Superior Court.
Alternatively, they week a stay pending review of those issues by the New Jersey appellate courts. This application was denied by Mr. Justice WHITE and then referred to me. Although a single Justice would ordinarily refer a reapplication for a stay to the full Conference of this Court, as we are now in recess and widely scattered, such a referral is not immediately practicable.
A preliminary question is whether a Justice of this Court has jurisdiction to grant a stay under the circumstances of this case. Under 28 U.S.C. § 2101(f), the execution and enforcement of a judgment or decree may be stayed by a Member of this Court in "any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari." The application of that provision, in turn, depends upon 28 U.S.C. § 1257, which provides that this Court has jurisdiction to review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had."
The proceedings relevant here began with an order of the Superior Court on June 30, 1978, denying the applicants' motion to quash the subpoena and directing them to produce the subpoenaed materials. The Superior Court declined to consider any constitutional or statutory claims of privilege until the applicants submitted the materials for in camera review. The applicants sought review of the Superior Court's order before the Appellate Division and the New Jersey Supreme Court, on the grounds they intend to raise in their petition for certiorari. Both courts denied leave to appeal and declined to stay the order to produce. With the case in that posture, both Mr. Justice WHITE and I denied the applicants' request for a stay.
Since the initial application for a stay, a different judge of the Superior Court on July 24 found the applicants guilty of both criminal and civil contempt for refusing to comply with the June 30 order to produce the subpoenaed materials. Without considering the issues that I previously had expected would be addressed in a contempt proceeding, see 439 U.S. 1304, 1305-1306, 98 S.Ct. 3060, 3061-1362, 58 L.Ed.2d 12, the Superior Court held that the applicants could not raise their constitutional or statutory challenges to the validity of the June 30 order to produce. As a coercive sanction for the civil contempt, the court sentenced Farber to jail and fined the New York Times $5,000 per day until the applicants complied with the order to produce. On the criminal contempt charges, Farber received a sentence of six months in jail and the New York Times was assessed a fine of $100,000.
The applicants appealed both the criminal and civil sanctions, and the Appellate Division agreed to accelerate those appeals to the extent possible. The Appellate Division decided to stay the criminal penalties against the applicants, but not the coercive civil penalties, which mandate immediate imprisonment of Farber. On July 25, the New Jersey Supreme Court also declined to stay the coercive penalties and refused to certify the applicants' appeals for direct consideration by that court. At present, the Appellate Division still has not set a date for hearing the applicants' appeals.
In most cases where an appeal is still pending in the state courts, Members of this Court would not have jurisdiction to issue a stay under 28 U.S.C. § 2101(f). See United States v. Nixon, 418 U.S. 683, 690-691, 94 S.Ct. 3090, 3098-3099, 41 L.Ed.2d 1039 (1974). However, this Court has shown a special solicitude for applicants who seek stays of actions threatening a significant impairment of First Amendment interests. The inability of an applicant to obtain timely substantive review by state courts of a serious First Amendment issue, prior to incurring substantial coercive penalties, may justify a determination that the applicant has satisfied the jurisdictional requirements of 28 U.S.C. § 2101(f). Even though this application does not involve a direct prior restraint. Mr. Justice BLACKMUN's analysis in Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 96 S.Ct. 251, 46 L.Ed.2d 237 (1975) (in chambers), is applicable here:
Id., at 1330, 96 S.Ct., at 254.
As in Nebraska Press, the delay by the appellate courts has left standing a serious intrusion on constitutionally protected rights. Mr. Justice WHITE credited these same First Amendment considerations when he determined to reach the merits of the present applicants' request for a stay. 439 U.S. 1317, 99 S.Ct. 6, 58 L.Ed.2d 25.
Although I agree with Mr. Justice WHITE's conclusion that he had the power to issue a stay at least until a final determination of the jurisdictional issue, I must differ with his conclusion on the merits of the constitutional questions raised by the applicants. As I observed in my previous opinion in this case:
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