State ex rel. Green Bay Newspaper Co. v. Circuit Court, Branch 1, Brown County

• Decision Date: 01 July 1983
• Docket Number: Nos. 82-2244-,83-133-CR,s. 82-2244-
• Citation: 113 Wis.2d 411,335 N.W.2d 367
• Court: Wisconsin Supreme Court
• Parties: , 9 Media L. Rep. 1889 STATE ex rel. GREEN BAY NEWSPAPER COMPANY, Terry Anderson and Mike Smothers, Petitioners, v. CIRCUIT COURT, BRANCH 1, BROWN COUNTY, The Honorable Richard G. Greenwood, Kenneth J. Phillips, Jr., and the State of Wisconsin, Respondents. In The Matter of the Finding of Contempt in STATE of Wisconsin v. Kenneth J. PHILLIPS, Jr. Terry ANDERSON and Mike Smothers, Appellants, v. CIRCUIT COURT FOR BROWN COUNTY, BRANCH 1, The Honorable Richard G. Greenwood, presiding, Respondent.

Page 367

335 N.W.2d 367

113 Wis.2d 411, 9 Media L. Rep. 1889

STATE ex rel. GREEN BAY NEWSPAPER COMPANY, Terry Anderson and Mike Smothers, Petitioners, v. CIRCUIT COURT, BRANCH 1, BROWN COUNTY, The Honorable Richard

G. Greenwood, Kenneth J. Phillips, Jr., and the

State of Wisconsin, Respondents.

In The Matter of the Finding of Contempt in STATE of Wisconsin v. Kenneth J. PHILLIPS, Jr.

Terry ANDERSON and Mike Smothers, Appellants, v. CIRCUIT COURT FOR BROWN COUNTY, BRANCH 1, The Honorable

Richard G. Greenwood, presiding, Respondent.

Nos. 82-2244-W, 83-133-CR.

Supreme Court of Wisconsin.

Argued April 25, 1983.

Decided July 1, 1983.

Thomas L. Shriner, Jr. (argued) Milwaukee, for petitioners and appellants; Robert W. Schaefer, John M. Thompson, and Trowbridge, Planert & Schaefer, S.C., Green Bay, James P. Brody, and Foley & Lardner, Milwaukee, on brief.

Carl R. Fenwick, Green Bay, for respondent, Kenneth J. Phillips, Jr.

Chris Heikenen, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondents, State of Wis. and the Honorable Richard G. Greenwood.

Diane S. Gutmann, Brady C. Williamson and LaFollette, Sinykin, Anderson & Munson, Madison, for Wis. Newspaper Ass'n and Wisconsin Freedom of Information Council and Reporters Committee for Freedom of the Press, amicus curiae.

DAY, Justice.

Case No. 82-2244-W is a review of a decision of the court of appeals which denied a request by the petitioners for a supervisory writ to prohibit the enforcement of a trial court order requiring an in camera disclosure of the sources of news articles written by Terry Anderson and Mike Smothers (both will be referred to in this opinion as the reporters), reporters for the Green Bay Press-Gazette. Case No. 83-133-CR is an appeal from a contempt order of the Circuit Court for Brown County, Richard G. Greenwood, Judge. The reporters petitioned this court to bypass the court of appeals in that case. The petition for review in Case No. 82-2244-W and the petition to bypass in Case No. 83-133-CR were granted by this court on February 15, 1982 and the cases were consolidated for review.

The issue presented on review ¹ is: Did the trial court, under the facts of this case err in ordering an in camera inspection and requiring the reporters to reveal the identity of their news sources to the trial judge?

We conclude the judge erred in requiring in camera disclosure of the reporters' sources. Because the criminal defendant seeking in camera disclosure of the sources has failed to make a prima facie case for the use of compulsory process, we determine that the trial court's order of contempt cannot stand. We therefore reverse that order.

These cases arose as the result of news articles written by the reporters in the summer of 1982. The articles included information regarding the conduct of a John Doe investigation into the death of David Moureau on October 17, 1981.

As the result of the John Doe investigation, the Brown County District Attorney, Peter J. Naze, charged Robert S. Vertz (Vertz) with first-degree murder in connection with the death and Kenneth J. Phillips, Jr. (Phillips) with aiding and abetting first-degree murder. As part of their preparation for trial on these charges, both of these individuals filed motions for a change of venue. In connection with these motions, Judge Greenwood ordered all the news media in the area to furnish to defense counsel transcripts of broadcasts and copies of newspaper articles on the Moureau murder and John Doe investigation.

The Green Bay Press-Gazette, ² employer of the two reporters involved in this case, complied with the order and furnished counsel with copies of articles written in connection with the murder and John Doe. Some of these articles, written by the two reporters, contained information about the John Doe and noted that the information was obtained from unnamed "sources." ³

At Phillips' request, Judge Greenwood subpoenaed the reporters to appear at a pretrial hearing with their notes on the articles they had written to give testimony as to the sources of the articles. The reporters and the newspaper filed a motion to quash the subpoenas on the grounds that the reporters had promised confidentiality to their sources and requiring disclosure of the identities of the sources would violate the reporters' qualified privilege of nondisclosure.

Judge Greenwood held several hearings on these and other motions. At one of the hearings, each reporter was called to testify. They testified in very general terms as to the number of sources for their articles. From their testimony it appears that between four and seven sources were used by the two reporters. The reporters also testified that all but one of the sources had been used before by them and that their news articles contained all of the substantive information that had been passed to them by the sources.

Judge Greenwood issued his decision denying the motion to quash on November 19, 1982 and ordered the reporters to appear before him in an in camera hearing. The purpose of the hearing was to take the reporters testimony as to the identities of their sources so as to make a determination as to whether that information should be disclosed to Phillips.

The reporters appealed Judge Greenwood's order ⁴ and filed a petition for a supervisory writ. The court of appeals dismissed the appeal from the "final" order, denied the petition to appeal the nonfinal order and denied the petition for a supervisory writ. The latter decision was made on the grounds that Judge Greenwood's decision had been correct.

The reporters sought review of the court of appeals denial of the petition for a supervisory writ.

On January 17, 1983, the reporters appeared at an in camera hearing before Judge Greenwood. When asked to name their sources for the news articles, each reporter declined to do so. The in camera hearing was then moved to open court where Judge Greenwood again asked each reporter if he would be willing to name his sources in an in camera hearing. When each refused, he found each in contempt of court and imposed a fine of $500. and confinement of no more than thirty days in the county jail.

The reporters appealed this order and petitioned this court to bypass the court of appeals. That petition was granted and the case was consolidated with the review of the court of appeals decision denying the supervisory writ.

Since State v. Knops, 49 Wis.2d 647, 183 N.W.2d 93 (1970), this court has recognized a qualified constitutionally-based journalist's privilege to refuse to disclose sources of information received in confidence. In Zelenka v. State, 83 Wis.2d 601, 617, 266 N.W.2d 279 (1978), this court held that the basis for that privilege rests in Art. I, sec. 3 of the Wisconsin Constitution which reads: "Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press."

The privilege recognized in Knops and Zelenka is not absolute. Rather, to determine whether the privilege will in any given situation protect a journalist from being required to disclose sources of information received in confidence requires a balancing of the factors supporting the non-disclosure privilege against the societal values favoring disclosure. Zelenka, 83 Wis.2d at 619, 266 N.W.2d 279.

Although this court has recognized the existence of a journalist's privilege, it has not had occasion to consider what procedural mechanisms should be adopted to facilitate a determination of whether in a given situation a journalist may properly invoke the privilege to prevent the disclosure of his confidential sources. This case raises the issue.

For a person to seek to invoke the privilege, there must be an initial showing, by affidavit or otherwise, that the person is one to whom the privilege should extend. ⁵ In Zelenka, this Court noted that Knops held that a journalist has a qualified privilege to refuse to disclose sources of information received in confidence. 83 Wis.2d at 616, 266 N.W.2d 279. In the present case, we are not required to determine what activities constitute "journalism" or allow a person to hold himself out as a journalist for purposes of the privilege. It is not disputed that both Anderson and Smothers, as reporters for the Green Bay Press-Gazette, fall within that definition. Further, since both reporters testified that the information they received from their sources was given in confidence, that requirement is also satisfied. It is also significant that, as both reporters testified, they have kept these confidences by not revealing the sources to anyone with the possible exception of their immediate supervisor at the newspaper.

Once a person has demonstrated entitlement to the journalist's qualified nondisclosure privilege, the question becomes one of how should that privilege be weighed against a defendant's right to compulsory process to obtain witnesses on his behalf. This court has recognized that a criminal defendant does not have an unqualified right to subpoena witnesses. In State v. Groppi, 41 Wis.2d 312, 323, 164 N.W.2d 266 (1969), reversed on other grounds, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971), it was held that "a defendant suffers no constitutional deprivation when he is limited to subpoenaing witnesses who can offer relevant and material evidence on his behalf." For the constitutional right to compulsory process to be invoked, a defendant must, if the subpoena is challenged, show there is a reasonable probability that the subpoenaed witnesses' testimony will be competent, relevant, material and favorable to his defense. ⁶ This is true whether the motion to quash the subpoena is made by a person seeking to exercise a privilege against testifying or by a person claiming no such privilege but who does not want to be...