Roche, Matter of

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; ABRAMS; Faced with this refusal; QUIRICO, Justice, with whom LIACOS
• Citation: 381 Mass. 624,411 N.E.2d 466
• Parties: , 6 Media L. Rep. 2121 In the Matter of Walter F. ROCHE, Jr.
• Decision Date: 15 October 1980

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411 N.E.2d 466 381 Mass. 624, 6 Media L. Rep. 2121 In the Matter of Walter F. ROCHE, Jr. Supreme Judicial Court of Massachusetts, Suffolk. Argued July 16, 1980.
Decided Oct. 15, 1980.

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[381 Mass. 625] Matthew H. Feinberg, Boston (Mary C. Leonard, Boston, with him), for Walter F. Roche, Jr.

J. Albert Johnson, Boston (Thomas J. May, Boston, with him), for Elwood S. McKenney.

Donald K. Stern, Asst. Atty. Gen., for the Commission on Judicial Conduct.

Jerome P. Facher, Sp. Counsel to the Commission on Judicial Conduct, Boston, pro se (James L. Quarles, III, Boston, with him).

Before [381 Mass. 624] HENNESSEY, C.J., and QUIRICO, WILKINS, LIACOS and ABRAMS, JJ.

[381 Mass. 625] ABRAMS, Justice.

A single justice of the Supreme Judicial Court adjudicated Walter F. Roche, Jr., in civil contempt for refusing to comply with an order that Roche testify fully at a deposition. On appeal, ¹ Roche contends

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that his status as a reporter for a television station frees him from the discovery obligations applicable to other persons by entitling him to assert, in his discretion, a right to refuse to disclose the identities of his "confidential sources." Alternatively, Roche claims that the single justice abused his discretion by declining to prevent what Roche terms "oppressive, unnecessary, and irrelevant" discovery. We disagree, and affirm the orders of the single justice.

As a reporter, employed by WBZ-TV, Westinghouse Broadcasting Corporation, Roche participated in preparing and presenting the station's investigative report on certain judges in the District Court Department. A series of alleged abuses were described by Roche in a broadcast aired by the [381 Mass. 626] station on January 11, 1979. Acting on the basis of a complaint grounded on this broadcast, the Commission on Judicial Conduct commenced an investigation of Judge Elwood S. McKenney. See McKenney v. Commission on Judicial Conduct, --- Mass. ---, --- n.4 ^a, 402 N.E.2d 1356 (1980).

Over a ten-month period, special counsel appointed ² to conduct this investigation deposed some seventy persons, including Roche. ³ On the basis of this extensive investigation by special counsel, the commission filed formal charges against Judge McKenney on April 11, 1980, and scheduled a hearing on these charges for July 17, 1980. The commission disclosed to the judge, at his request, transcripts of all depositions taken by the special counsel and furnished the judge with a list of sixty-five persons who might be called as witnesses at its hearing on the charges.

In preparing his defense against the commission's charges, Judge McKenney sought from the commission, and was granted, an order authorizing him to depose eleven of these sixty-five potential witnesses, including Roche. See G.L. c. 211C, § 2. Commission on Judicial Conduct Operating Rule 13(d).

Roche appeared at the requested deposition and answered all questions regarding his own observations. He also answered questions regarding his interviews with three persons whose identities were revealed by their appearances on the broadcast. Roche stated that all of his sources were included in the commission's list of sixty-five potential witnesses, and also named certain persons whom he had not interviewed. Roche refused, however, to answer any questions which in his judgment would "reveal confidential sources or could reasonably lead to the revealing of confidential sources."

[381 Mass. 627] Faced with this refusal, Judge McKenney applied to the single justice for an order compelling Roche to testify fully both as to the identity of the persons he interviewed and the information he thereby obtained. Roche simultaneously sought from the single justice a protective order blocking this requested testimony.

The single justice referred both motions to the commission. Relying on our decisions in Matter of Pappas, 358 Mass. 604, 266 N.E.2d 297 (1971), aff'd sub nom. Branzburg v. Hayes, 408 U.S 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), and Dow Jones & Co. v. Superior Court, 364 Mass. 317, 303 N.E.2d 847 (1973), the commission in a written decision rejected Roche's claim that the First Amendment to the Constitution of the United States creates a qualified newsman's privilege against disclosure of sources during pretrial discovery in a civil proceeding. In addition, after balancing the interests of Judge McKenney and Roche, the commission declined to exercise its discretion to limit the scope of discovery. The commission reasoned that at the hearing on the charges against him, Judge McKenney

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would be entitled to test the credibility of any witness who might be called against him by a prior inconsistent statement made to Roche. Such statements, if any, would be unavailable from any other source. The commission therefore concluded that the relevance of the requested discovery was "hardly 'attenuated or remote,' " quoting from Ward v. Peabody, --- Mass. ---, --- ^b, 405 N.E.2d 973 (1980).

In the face of the commission's denial of his motion for a protective order, Roche renewed his motion for such an order before the single justice. ⁴ In denying this motion, the [381 Mass. 628] single justice concluded that he could find "no basis for any essential disagreement with the Commission."

While thus indorsing the commission's decision, which had stressed the relevance of Roche's testimony to Judge McKenney's presentation at the formal proceedings against him, the single justice also pointed to what he termed the absence of any "theoretic or practical" impact on Roche's asserted interests likely to result from the requested discovery. The single justice noted that six persons had indicated during their depositions by Judge McKenney that they had been interviewed by Roche. Three of those persons had appeared on the television broadcast, while the other three had not been identified previously. Roche agreed to be deposed as to his conversations with these six persons. In effect, the single justice found that while Roche maintained that he was not willing to initiate identifications, he would be willing to be deposed as to his discussions with any person whose identity as a source was otherwise revealed. Since Roche had already indicated that all of his sources were included in the commission's list of sixty-five potential witnesses, the single justice reasoned that in essence what Roche was demanding was that prior to fully deposing him, Judge McKenney first ask all other potential witnesses a single question, namely, whether they had been interviewed by Roche. In view of the fact that by following this time-consuming but otherwise purely mechanical approach Judge McKenney could readily establish a list of all those persons interviewed, ⁵ and would therefore be able to [381 Mass. 629] depose Roche fully, the single justice concluded that the protective order sought by Roche amounted "simply to a shuffle as to priority of time."

The single justice therefore ordered the further deposition of Roche to proceed as ordered by the commission. When Roche again refused to testify as to the identity of his sources, the single justice adjudicated him in civil contempt, and ordered Roche committed until he either purged himself or was "otherwise relieved by order of the court." After oral argument we affirmed

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the order of the single justice entitled "Adjudication of Civil Contempt." ⁶

There appear to be at least four bases on which this adjudication of contempt and the underlying order compelling Roche to testify fully might arguably have been challenged: (1) the First Amendment to the United States Constitution; (2) art. 16 of the Declaration of Rights of the Massachusetts Constitution; (3) a common law evidentiary rule; and (4) the general duty of a judge or an administrative tribunal to supervise the discovery process so as to avoid oppressive, unnecessary, and irrelevant discovery. Cf. Mass.R.Civ.P. 26(c), 365 Mass. 772 (1974). Roche relies on only the first and fourth of these arguments, ⁷ and we therefore intimate no [381 Mass. 630] view as to the validity of his claims under either the State Constitution or a rule of common law.

At the outset, it is important to recognize those issues which are not involved in this action. This is not a case where compelling a journalist to testify about his past news-gathering activities will result in the identification of otherwise unidentifiable sources. Since Roche has already admitted that all of his sources are named in the commission's list of sixty-five potential witnesses, and since Judge McKenney may depose each of those witnesses individually and ask if they provided Roche with information, the question here is not whether the identities of those sources will be revealed, but when they will be revealed, and to what lengths Judge McKenney will have to go to obtain this information.

This is also not a case in which Fifth Amendment rights are implicated. Neither Roche nor any of the deponents who have admitted being Roche's sources have invoked the privilege against self-incrimination, and there has been no indication that future witnesses will do so. Nor does this case involve the duty of a news reporter to reveal perjury, when the knowledge that such an act has been committed is based solely on confidential information. While several recent cases have required courts to define and to clarify the rights of journalists, so as to minimize interference with the important news gathering and information-disseminating role they play in our society, this is not such a case. The one issue that is raised here is whether a news reporter may regulate the order of discovery and thereby postpone the release of information, the revelation of which is a foregone conclusion.

First Amendment claim. Roche argues that the First Amendment to the United States Constitution requires that a news reporter who is not a party to a judicial proceeding must be...