State ex rel. Hudok v. Henry

• Decision Date: 20 December 1989
• Docket Number: No. 19207,19207
• Citation: 182 W.Va. 500,389 S.E.2d 188
• Parties: , 17 Media L. Rep. 1627 STATE of West Virginia ex rel. Ron HUDOK and Natasha Singh v. Hon. Patrick G. HENRY, III, Judge of the Thirty-First Judicial Circuit; Hon. Thomas W. Steptoe, Jr., Judge of the Twenty-Third Judicial Circuit; David Born and Linda Butner.
• Court: West Virginia Supreme Court

Page 188

389 S.E.2d 188

182 W.Va. 500, 17 Media L. Rep. 1627

STATE of West Virginia ex rel. Ron HUDOK and Natasha Singh v. Hon. Patrick G. HENRY, III, Judge of the Thirty-First

Judicial Circuit; Hon. Thomas W. Steptoe, Jr.,

Judge of the Twenty-Third Judicial

Circuit; David Born and Linda Butner.

No. 19207.

Supreme Court of Appeals of

West Virginia.

Dec. 20, 1989.

Rehearing Denied Feb. 8, 1990.

Syllabus by the Court

1. To protect the important public interest of reporters in their news-gathering functions under the First Amendment to the United States Constitution, disclosure of a reporter's confidential sources or news-gathering materials may not be compelled except upon a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.

2. " ' "A writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction exceeds its legitimate powers." Syllabus Point 1, State ex rel. UMWA International Union v. Maynard, 176 W.Va. 431, 342 S.E.2d 96 (1985).' Syllabus, Williams v. Narick, 177 W.Va. 11, 350 S.E.2d 11 (1986)." Syllabus Point 4, State ex rel. Boards of Educ. v. Chafin, 180 W.Va. 219, 376 S.E.2d 113 (1988).

Peter L. Chakmakian, Charles Town, for Natasha Singh.

Herbert G. Underwood, Matthew J. Mullaney, Steptoe & Johnson, Clarksburg, for Ron Hudok.

Patrick G. Henry, III, Judge, Circuit Court, Martinsburg, pro se.

David Born, Family Law Magistrate, Fairmont, pro se.

Thomas Steptoe, Jr., Judge, Circuit Court, Charles Town, pro se.

Prosecutor Michael Thompson, Charleston, Jane E. Kirtley, The Reporters Committee for Freedom of the Press, Washington, D.C., for respondents.

Steven Askin, Martinsburg, for Linda Butner.

MILLER, Justice:

In this original proceeding in prohibition, we are asked to determine the extent of a news reporter's privilege to decline to answer questions or to divulge information obtained in the course of his news-gathering function. The privilege is asserted under the free press clause of the First Amendment to the United States Constitution, ¹ as well as under Article III, Section 7 of the West Virginia Constitution. ² The reporters, Ron Hudok and Natasha Singh, contend that the Honorable Patrick G. Henry, III, Judge of the Thirty-First Judicial Circuit, acted beyond his legitimate authority in finding them in contempt for failing to answer questions at an administrative hearing to contest the discharge of Linda Butner from her job as clerk of the Magistrate Court of Jefferson County.

I.

This controversy arose after Mrs. Butner spoke to Ron Hudok, a reporter with The Martinsburg Evening Journal, with regard to a search of her home by sheriff's deputies pursuant to a warrant. In this interview, published in the paper on April 11, 1989, under Mr. Hudok's by-line, Mrs. Butner claimed that the sheriff had used the search "to get his name out of the limelight." She also indicated that the affidavit for the warrant was "sloppy" in that it contained a number of typographical errors.

On May 15, 1989, Mrs. Butner was placed on a thirty-day administrative leave by one of the respondent judges, the Honorable Thomas W. Steptoe, Jr., Judge of the Twenty-Third Judicial Circuit. Subsequently, on May 26, 1989, the paper published another interview with Mrs. Butner under the by-line of Beth Traubert. In this article, it was reported that Mrs. Butner had appeared before the Jefferson County Commission complaining that the sheriff was attempting to set her up as a drug pusher. The article pointed out that Mrs. Butner's husband had previously been arrested for cultivating marijuana, but that she had not been charged with any wrongdoing.

On June 6, 1989, Judge Steptoe entered an order removing Mrs. Butner as magistrate clerk. ³ Mrs. Butner requested an administrative hearing to protest her firing.

An evidentiary hearing was set for September 18, 1989, before a hearing examiner. Both newspaper reporters were subpoenaed by Judge Steptoe to support his case for firing Mrs. Butner. In addition, Judge Steptoe issued a subpoena to Natasha Singh, a reporter for a local radio station. Ms. Singh had conducted an interview with Mrs. Butner which had never been made public. Judge Steptoe had become aware of the interview and called Ms. Singh on the telephone. According to Judge Steptoe, when asked if Mrs. Butner had made comments about the sheriff, Ms. Singh responded that Mrs. Butner had nothing nice to say about him.

At the administrative hearing, Mrs. Butner admitted that the comments attributed to her in the May 26, 1989 newspaper article were essentially correct. Ms. Traubert was released from her subpoena and was not required to testify. Judge Steptoe then questioned Ms. Singh as to whether Mrs. Butner had been critical of the sheriff in her interview. Despite her claim of a First Amendment news-gathering privilege, Ms. Singh was ordered by the hearing examiner to answer Judge Steptoe's question. Ms. Singh refused to respond on First Amendment grounds. Mr. Hudok was also required to take the stand. He responded to several preliminary questions, but when asked whether Mrs. Butner had made the remark, "I feel we were used by the sheriff to get his name out of the limelight," he declined to answer, claiming a First Amendment privilege.

The administrative hearing was adjourned, and the next day a contempt ruling was sought from Judge Henry, who concluded that Mr. Hudok and Ms. Singh were in civil contempt for refusing to testify. He ordered them to be incarcerated until they purged themselves of contempt by responding to the questions. This order was stayed to allow application to this Court.

II.

In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the United States Supreme Court first had occasion to decide whether a reporter could claim a privilege under the First Amendment to refuse to disclose confidential sources to a grand jury engaged in a criminal investigation. The Court declined to find such a privilege based on the reporter's claim that disclosure would cause substantial interference with news gathering and breach the confidentiality of news sources vital to a free and independent press. It is generally recognized, however, that Branzburg does stand for a qualified privilege. ⁴

Following Branzburg, ⁵ most courts have formulated a balancing test patterned after Justice Stewart's dissent in Branzburg ⁶ and summarized in In Re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7 (2d Cir.), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982):

"The law in this Circuit is clear that to protect the important interests of reporters and the public in preserving the confidentiality of journalists' sources, disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." (Citations omitted).

See also United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983); United States v. Cuthbertson, 630 F.2d 139 (3d Cir.1980), cert. denied, 454 U.S. 1056, 102 S.Ct. 604, 70 L.Ed.2d 594 (1981); LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir.), cert. denied, 479 U.S. 818, 107 S.Ct. 79, 93 L.Ed.2d 34 (1986); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981); CBS, Inc. v. Superior Court, 85 Cal.App.3d 241, 149 Cal.Rptr. 421 (1978); Morgan v. State, 337 So.2d 951 (Fla.1976); Matter of Contempt of Wright, 108 Idaho 418, 700 P.2d 40 (1985); State v. Sandstrom, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929, 99 S.Ct. 1265, 59 L.Ed.2d 485 (1979); In Re Subpoena Duces Tecum v. Zulka, 489 N.E.2d 146 (Ind.App.1986); In Re Contempt of Stone, 154 Mich.App. 121, 397 N.W.2d 244 (1986); O'Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277 (1988); Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429, cert. denied, 419 U.S. 966, 95 S.Ct. 229, 42 L.Ed.2d 182 (1974). See generally Annot., 99 A.L.R.3d 37 (1980) (privilege against disclosure of confidential source or materials). Contra In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir.1987).

Branzburg involved a reporter ⁷ who had been subpoenaed to testify before a grand jury investigating drug dealing based on two articles written by the reporter from personal observation. The reporter refused to identify the persons who were involved in the drug episodes that he had witnessed and who formed the basis of his articles. Branzburg's underpinning was the obvious public importance of effective criminal investigation and the duty of citizens to furnish to a grand jury relevant information regarding criminal activity of which they are knowledgeable.

In this case, we do not deal with a grand jury subpoena, but with a subpoena issued for an administrative hearing. ⁸ Courts have been more reluctant to enforce subpoenas against reporters in civil or administrative proceedings. As the court stated in Zerilli v. Smith, 211 U.S.App.D.C. 116, 123, 656 F.2d 705, 712 (1981): "Every other circuit that has considered the question has also ruled that a privilege should be readily available in civil cases, and that a balancing approach should be applied." ⁹ Zerilli also recognized the distinction between civil actions in which the reporter is a party and those in which he is not. Where the reporter is a party, and particularly in a libel action, "the equities weigh somewhat more heavily in favor of disclosure." 211 U.S.App.D.C. at 125, 656 F.2d at 714. ¹⁰

In this case, there was no confidential informant. Mr. Hudok's article disclosed Mrs....