State v. Rinaldo, 9976-1-I
| Decision Date | 21 November 1983 |
| Docket Number | No. 9976-1-I,9976-1-I |
| Citation | 673 P.2d 614,36 Wn.App. 86 |
| Parties | , 9 Media L. Rep. 1419, 9 Media L. Rep. 2529 STATE of Washington, Plaintiff, v. Theodore RINALDO, Respondent, and The Everett Herald, Petitioner. |
| Court | Washington Court of Appeals |
Perkins, Coie, Stone, Olsen & Williams, David J. Burman, Seattle, for petitioner.
Mark D. Mestel, Everett, for respondent.
Russell B. Juckett, Snohomish County Pros. Atty., James B. Roche, Deputy Pros. Atty., Everett, for plaintiff.
This case comes before us on discretionary review of a pretrial discovery order requiring The Herald (formerly The Everett Herald) to produce certain of its files for an in camera inspection by the trial court. The issue arose during the course of pretrial discovery by Theodore Rinaldo with respect to criminal proceedings pending against him.
During the spring and summer of 1979, Gary Larson, a reporter for The Herald, authored a series of six articles concerning alleged cult activities at Eden Farms, a 60- to 80-acre farm operated by Rinaldo. In order to obtain information for the articles, Larson pledged to keep his sources confidential. Later that summer, the Snohomish County Prosecuting Attorney charged Rinaldo with statutory rape, indecent liberties, assault, coercion and intimidating a witness. He was tried and found guilty of some of these offenses by a jury. Approximately a year later, several witnesses With respect to these new charges, counsel for Rinaldo filed a motion for a subpoena duces tecum directed to The Herald to disclose to the defense all written or recorded material in its possession compiled after January 1, 1978 which related to Rinaldo, Eden Farms, Ellogos (a nonprofit corporation operated by Rinaldo and the part owner of Eden Farms) and 38 past or current members of those two organizations. In the alternative, the motion asked that The Herald be required to first deliver such material to the court for an in camera inspection.
who had testified on behalf of Rinaldo contacted the county sheriff's office and said that they had committed perjury at the trial because of threats by Rinaldo. As a result of these recantations, Rinaldo was charged with perjury, intimidating witnesses, tampering with witnesses and statutory rape.
The Herald moved to quash the subpoena duces tecum on the ground that the information was privileged and not subject to disclosure. The subpoena was subsequently amended to require The Herald to produce any information in its possession potentially favorable to Rinaldo on the issue of guilt or mitigation of degree and all written or recorded statements in The Herald's files given by any of the 21 persons listed by the State as witnesses to be called in Rinaldo's forthcoming trial.
Counsel for Rinaldo argued that there was no privilege, either absolute or qualified, afforded to news gatherers as far as revealing confidential sources in the context of criminal proceedings. He urged the trial court to review the material in camera in order to decide whether production should be required by the court.
The trial court held that the newspaper had a qualified privilege of nondisclosure which would have to be balanced by the court against Rinaldo's constitutional right to a fair trial and ordered that the material be produced for an in camera review by the court. On petition by The Herald, we granted discretionary review. We then later stayed proceedings in this court pending the Supreme Court's anticipated decision in Senear v. Daily Journal-American, 97 One ultimate issue is presented in the case before us.
Wash.2d 148, 641 P.2d 1180 (1982), a decision which has now been filed.
Did the Superior Court of the State of Washington for Snohomish County err in ordering The Herald and its reporter to reveal their confidential news sources, and to turn over the confidential information obtained from such sources for review by the court at an in camera hearing--and at which hearing the court would determine what part of such information, if any, would be provided to the defendant in this criminal prosecution?
CONCLUSION. In this criminal case, under article 1, section 5 of the Constitution of the State of Washington, The Herald and its reporter had an absolute privilege of nondisclosure of confidences and confidential news sources, and since there was no abuse of that privilege the trial court erred in entering its discovery order.
The United States Supreme Court has considered the question of a news reporter's privilege against disclosure in one case, as has the Supreme Court of this state in another. In order to put the holding in this case and the views expressed herein into perspective, those two decisions will first be referred to.
The leading case nationally on this subject is Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) decided by the United States Supreme Court. There, in an opinion expressing the views of five members of the court, it was held that the first amendment to the United States Constitution 1 does not give reporters a privilege against appearing before a federal grand jury and answering questions about the identity of news sources or information received in confidence. Two things about that decision are of particular legal significance in the case at bench. One is that in Branzburg, The New York Times (whose reporting functions were there in issue) did not seek a declaration of absolute privilege (as The Herald does in this case). The other is that the majority specifically observed:
It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute.
(Italics supplied.) Branzburg, 408 U.S. at 706, 92 S.Ct. at 2670.
The leading case in this state is now the State Supreme Court's recent holding in Senear, a civil case, 2 in which the majority held that a reporter has a common law privilege, but that the privilege is only a "qualified" one. As the majority also made clear in that case, Senear, 97 Wash. at 151, 641 P.2d 1180. The State Supreme Court in Senear, as well as a different panel of this court when Senear was earlier before us, 3 stated that it would not find that the first amendment to the United States Constitution afforded a reporter an absolute privilege of nondisclosure of confidential news sources in either criminal or civil actions. Senear, at 151, 641 P.2d 1180.
The right of the courts of this state to recognize an absolute reporter's privilege of nondisclosure of confidential news sources and information in criminal cases under our state constitution (the issue before us in this case), has thus been specifically left open to us by the United States Supreme Court in Branzburg, and has not as yet been addressed by any appellate court of this state.
To then turn to our state constitution's free speech and press clause. 4 First of all, in interpreting that clause "we must credit the people with knowing their own purposes and with knowing how to express them." 5 Furthermore, 6 (Footnotes omitted.)
Unfortunately, only a summary abstract of motions and votes of the constitutional convention which adopted our state constitution has survived, and the verbatim shorthand report made of the convention proceedings was destroyed without ever being transcribed. 7 However, it is the law of this state that contemporary newspaper accounts may be consulted in construing a constitutional provision. 8 Fortunately, such accounts have been documented in the course of historical research and have recently been made available for our use. 9
As this historical research now makes clear, three separate freedom of speech and press clauses were considered by the Washington State Constitutional Convention of 1889 which assembled in Olympia, Washington and wrote our state constitution. The evolution of that clause is both informative and interesting.
The first version of the free speech and press clause considered by our state's constitutional convention was that contained in the so-called Hill Proposed Constitution for the State of Washington. That proposal was commissioned by The Morning Oregonian and was drafted by W. Lair Hill, a lawyer and former editor of that Portland, Oregon newspaper. At the time of the constitutional convention, Mr. Hill lived in Seattle. The Hill Proposed Constitution for the State of Washington was printed in The Morning Oregonian on July 4, 1889, the opening day of the convention, and a copy was placed on the desk of each delegate. That the Hill proposal was given serious consideration by the delegates throughout the convention is evinced by the fact that some 51 of its provisions were subsequently adopted without change. As drafted by W. Lair Hill, the proposed free speech and press clause was contained in the Bill of Rights section of his proposed constitution as article 1, section 5 thereof. It read as follows:
No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever, but every person shall be responsible for the abuse of this right.
(Italics supplied.) 10
The second version of the clause was that submitted to the convention by delegate Allen Weir (later elected Secretary of State of the State of Washington). On...
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State v. Rinaldo
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