Rosato v. Superior Court

• Decision Date: 08 September 1975
• Court: California Court of Appeals Court of Appeals
• Parties: , 1 Media L. Rep. 2560 Joe ROSATO et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent. Civ. 2623.

Page 427

124 Cal.Rptr. 427

51 Cal.App.3d 190, 1 Media L. Rep. 2560

Joe ROSATO et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent.

Civ. 2623.

Court of Appeal, Fifth District, California.

Sept. 8, 1975.

Hearing Denied Nov. 20, 1975.

John J. Hamlyn, Douglas T. Foster, Sacramento, Fullerton, Lang, Richert & Patch, Philip C. Fullerton, Jeffrey L. Wall, Irwin & Thusesen and Donald H. Glasrud, Fresno, for petitioners

Robert M. Wash, County Counsel, Max E. Robinson, Asst. County Counsel, and Charles E. Moore, Deputy County Counsel, Fresno, for respondent.

Arnold & Porter, Mitchell Rogovin, Washington, D.C., Downey, Brand, Seymour & Rohwer and John F. Downey, Sacramento, as amici curiae on behalf of petitioners.

OPINION

GEO. A. BROWN, Presiding Justice.

INTRODUCTION

Petitioners, Joe Rosato and William E. Patterson, reports, George F. Gruner, managing editor, and Jim Bort, city editor, all employed by Fresno's largest daily newspaper, The Fresno Bee, ¹ seek a writ of review to annul orders of respondent court adjudging them in contempt for refusing to answer questions put to them and committing them to jail ² until such time as the questions are answered.

The witnesses' refusal to answer is grounded upon the provisions of Evidence Code section 1070, ³ commonly referred to as the 'shield law,' and upon the First Amendment to the United States Constitution and the analogous provision contained in article I, section 2 of the California Constitution. ⁴

This cause has received widespread publicity and comment and the proper resolution of the issues is of more than routine importance to the public, to criminal defendants, to the press ⁵ and to the courts.

SYNOPSIS OF FACTS

On October of 1974 the Fresno County Grand Jury jointly indicted Fresno City Councilman Marc Stefano, land developer Julius Aluisi and former City of Fresno Planning Commissioner Norman Bains on counts of bribery and conspiracy. Because of the prominence of the defendants and the nature of the charges, the incident generated extensive public interest and discussion.

The original and four copies of the grand jury transcript were delivered by the court reporter to the county clerk, who in turn delivered one copy to the district attorney, one copy to the defendant Stefano, one copy to Paul Mosesian, attorney for defendant Aluisi, and one copy to Assistant Public Defender Hugh Goodwin, attorney for defendant Bains. The original was retained in the county clerk's safe except when it was in the possession of the court.

On November 21, 1974, one day before the grand jury transcript normally would have become available to the public, the court, on motion of the three defendants pursuant to Penal Code section 938.1, subdivision (b), ⁶ ordered the grand jury transcript sealed until completion of all the defendants' trials. On the following day, November 22, 1974, pursuant to motion or concurrence of all of the defendants, respondent court issued and files a protective order entitled 'Order re Publicity' with regard to the three criminal defendants. That order, after reciting the necessity to protect the defendants' right to due process of law and to a fair trial and noting that 'it further appearing to the Court that the dissemination by any means of public communication of any out-of-court statements relating to this case may interfere with the constitutional right of the defendants to a fair trial and disrupt the proper administration of justice . . .,' directed that:

'. . . no party to this action nor any attorney connected with this case as defense counsel or prosecutor, nor any other attorney, nor any judicial officer or employee, nor any public official, including but not limited to any chief of police, nor any sheriff, nor any agent, deputy, or employee of any such person, nor any grand juror, nor any witness having appeared before the Grand Jury in this matter, nor any person subpeonaed (sic) to testify at the trial of this matter, shall release or authorize the release for public dissemination of any purported extra-judicial statement of the defendants or witnesses relating to the case, nor shall any such person release or authorize the release of any documents, exhibits, or any evidence, the admissibility of which may have to be determined by the Court, nor shall any such person make any statement for public dissemination as to the existence or possible existence of any document, exhibit, or any other evidence, the admissibility of which may have to be determined by the Court. Nor shall any such persons express outside of court an opinion or make any comment for public dissemination as to the weight, value, or effect of any evidence as tending to establish guilt or innocence. Nor shall any such persons make any statement outside of court as to the nature, substance, or effect of any testimony that has been given. Nor shall any such persons issue any statement as to the identity of any prospective witness, or his probable testimony, or the effect thereof. Nor shall any person make any out-of-court statement as (to) the nature, source, or effect of any purported evidence alleged to have been accumulated as a result of the investigation of this matter. Nor shall any such person or witness, whether or not under subpoenas (sic), make any statement as to the content, nature, substance, or effect of any testimony which may be given in any proceeding related to this matter, except that a witness may discuss any matter, with an attorney of record or agent thereof.' ⁷

Defendant Stefano's motion for change of venue in the criminal matter was granted on January 3, 1975, and a like motion was granted upon the motion of defendant Aluisi on January 7, 1975. Defendant Bains' criminal trial was never transferred from Fresno County.

Notwithstanding the knowledge of petitioners Rosato and Patterson as to the existence and content of the seal and protective orders, there appeared on the front page of The Fresno Bee on January 12, 13 and 14, 1975, stories under their by-lines which quoted extensively from the sealed grand jury transcript.

It appearing to the respondent court that there had been a violation of the court orders, the court directed the county counsel to represent the court ⁸ in further proceedings concerning the apparent violation of its orders and set a hearing for January 24, 1975. The court asserted that the purpose of the hearing was (1) to punish disobedience of the court's orders by those subject thereto and (2) to perfect a record pertaining to pretrial publicity which the court characterized as an issue likely to be raised on appeal. The hearings were held on January 24 and 27, February 6, April 21 and 23, 1975.

Petitioners Rosato, Patterson and Gruner were served with a subpoena duces tecum directing them to produce at the hearings any copy of the grand jury transcript which they might have in their possession or under their control. A motion to quash the subpoena was filed by their counsel, and, in support thereof, the declarations of petitioners Patterson and Rosato stated that they did not have in their possession or under their control a copy of the grand jury transcript. The declaration of petitioner Gruner, though not denying that he had in his possession or under his control a copy of the grand jury transcript, alleged that the articles were derived from confidential news sources, and Gruner did not produce the transcript. The court denied the motion to quash. One of the contempt citations was based upon Gruner's failure to produce the transcript. Petitioner Bort, who did not appear at the hearings until April 21, testified that he did not have in his possession or under his control a copy of the grand jury transcript.

Prior to calling petitioners as witnesses at the hearings, the assistant county counsel, who conducted the hearings before the respondent court, called 13 witnesses who had lawful access to the grand jury transcript and who were subject to the court order. During the direct examination of all witnesses, petitioners and all other witnesses were excluded from the courtroom except when they themselves were testifying. Counsel for petitioners were permitted to remain in the courtroom but were not allowed to cross-examine witnesses except through a procedure whereby questions would be submitted to the assistant county counsel to be asked by him at his discretion.

Each of these 13 witnesses testified that he had no knowledge or information as to how any newsperson obtained a copy of any portion of the grand jury transcript, that he had no objection to newspersons disclosing to the court the source of the quotations from the grand jury transcript which had been published in The Fresno Bee, and that he had no objection to any newsperson releasing to the court any copy of the grand jury transcript in his or her possession. During the course of the examination of these persons, it developed that there were several persons who had either access to the grand jury transcript through one of the persons authorized to possess it or who had copied the transcript pursuant to a request by someone in lawful possession of the document, which persons were not called as witnesses. Among those so identified were the wife and daughter of the court reporter who worked for him in transcription work, the district attorney's secretary, the chief assistant attorney general of the state, a Xerox operator in the district attorney's office, secretaries in Robert Carter's office, counsel for Stefano, an investigator for the district attorney, and an associate attorney of Paul Mosesian, counsel for Aluisi.

Assistant Public Defender Hugh Goodwin testified that the public defender's copy of the grand jury transcript had been kept on Mr. Goodwin's desk for several weeks after he received it on November 12, 1974, and that the public defender's office is locked at the conclusion of the day. He also testified that the...