Winegard v. Oxberger

• Decision Date: 19 October 1977
• Docket Number: No. 2-58361,2-58361
• Citation: 258 N.W.2d 847
• Parties: 3 Media L. Rep. 1326 John R. WINEGARD, Petitioner, v. Hon. Leo OXBERGER, Judge of the 5th Judicial District of Iowa, Respondent.
• Court: Iowa Supreme Court

Page 847

258 N.W.2d 847

3 Media L. Rep. 1326

John R. WINEGARD, Petitioner, v. Hon. Leo OXBERGER, Judge of the 5th Judicial District of Iowa, Respondent.

No. 2-58361.

Supreme Court of Iowa.

Oct. 19, 1977.

Edward W. Dailey and David A. Hirsch, of Edward W. Dailey Law Offices, P. C., Burlington, for petitioner.

Robert G. Riley and Glenn L. Smith, of Duncan, Jones, Riley & Finley, and Gary G. Gerlach, Des Moines, for Diane Graham and Des Moines Register and Tribune Co., on behalf of respondent.

Robert S. Potter and Robert D. Sack, of Patterson, Belknap & Webb, New York City, for Dow Jones & Co., Inc., amicus curiae.

Stewart, Heartney, Brodsky, Thornton & Harvey, Des Moines, for Iowa Press Ass'n, amicus curiae.

Naomi S. Mercer, Des Moines, for Iowa Broadcast News Ass'n, amicus curiae.

Edward J. Kelly, and E. J. Kelly, of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for Iowa Broadcasters Ass'n, amicus curiae.

Kermit S. Sutton, of Whitfield, Musgrave, Selvy, Kelly & Eddy, Des Moines, for Des Moines Professional Chapter of the Society of Professional Journalists, Sigma Delta Chi, amicus curiae.

En banc.

RAWLINGS, Justice.

This is an original certiorari proceeding to determine whether respondent judge exceeded his proper jurisdiction or otherwise acted illegally in overruling petitioner's motions to compel discovery of a newsperson, and to sequester a predecree order filed in a pending marriage dissolution action. We sustain the writ.

February 6, 1973, Sally Ann Winegard (Sally) commenced proceedings in Des Moines District Court (District Court) for dissolution of a common-law marriage she claims existed between her and John R. Winegard (Winegard). October 18, 1974, District Court, upon findings of fact and conclusions of law, held a valid marriage existed as between these two persons.

Winegard then unsuccessfully applied to this court for permission to effect an interlocutory appeal. Attached to the application was a copy of the District Court adjudication.

Subsequently, Sally attempted to discover financial information from Winegard. He, in turn, sought declaratory and injunctive relief from such discovery in federal district court. A copy of the interrogatories submitted by Sally to Winegard was there made a part of the latter's pleadings. April 3, 1975, this action was dismissed on jurisdictional grounds.

Meanwhile, Diane Graham (Graham), a Des Moines Register and Tribune Company (Register) reporter assigned to examine the records in Des Moines courts, became conversant with the documents filed in connection with Winegard's federal action. She prepared two articles later published by the Register. They stated in some detail the facts underlying Sally's claim that a common-law marriage existed. Many of the statements therein contained were attributed to Stephen L. Schalk (Schalk), Sally's attorney in the marriage dissolution proceeding. Thereupon Winegard brought an action for damages in Scott District Court against the Schalk law firm members by reason of asserted invasion of privacy and defamation. The present proceeding is an outgrowth of that action.

March 1, 1975, as an action-related "discovery" approach, Winegard sought to depose Graham and obtain from her or the Register any information obtained and notes made in preparation of the articles. Graham appeared pursuant to subpoena and testified she "substantially wrote" the articles which, to the best of her knowledge, were true and correct. She refused, however, on the basis of rights allegedly guaranteed by the First Amendment to the United States Constitution and article I, section 7, of the Iowa Constitution, to answer questions about conversations with or identity of her sources, preparation of the articles, and procedures followed in editing them.

Graham and the Register then applied to Polk District Court, pursuant to Iowa R.Civ.P. 123, for a protective order quashing the deposition-related subpoenas. Winegard moved to compel discovery under rule 134. April 1, 1975, hearing was had before Judge Leo Oxberger (respondent) on those motions. April 8, 1975, Winegard filed a written renewal of a motion to sequester (made orally at the hearing) and a motion to strike the copy of Winegard's interlocutory appeal application (with District Court's ruling attached), which was Exhibit C of the application for protective order. Graham and the Register resisted.

Judge Oxberger overruled Winegard's motion to compel discovery. He concluded the First Amendment granted Graham a newsperson qualified privilege not to answer Winegard's questions, and in so doing fashioned a four-step test which Winegard was held not to have fulfilled. Respondent judge also denied motions to sequester and strike District Court's ruling, holding the language of Section 598.26, The Code 1973, did not apply to judicial findings of fact and conclusions of law.

June 12, 1975, this court granted certiorari and pursuant to Winegard's motion ordered sealed and sequestered "those papers constituting transcripts of testimony, documents, or proceedings or which copy any part thereof, in the dissolution action" pending this opinion. Included in the sequestration order was Exhibit C about which Winegard complained, together with Sally's interrogatories attached by Winegard to his federal court complaint, Exhibit B of Graham's application.

These are the broadly stated issues here to be resolved:

1. Does Code § 598.26 require that copies of judicial findings of fact and conclusions of law and interrogatories in a pending dissolution action be sealed or sequestered when filed in another court's public records?

2. Does the First Amendment, United States Constitution, or article I, section 7, Iowa Constitution, support recognition of a newsperson's privilege, and if so, has Winegard met his burden to override such privilege?

I. Our opinion in the case of In re Marriage of Winegard, 257 N.W.2d 609 (Iowa 1977), unavoidably portrays the entire factual situation which inheres in the first above stated question. Therefore it is now moot and the second issue alone will be entertained.

II. Our scope of review is amply developed in Hightower v. Peterson, 235 N.W.2d 313, 316-317 (Iowa 1975), quoting State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975), and need not be repeated.

III. To what extent, if any, does the First Amendment protect confidentiality of newsperson's sources and information? Although this is a question of first impression in Iowa, it has evoked a flood of litigation and commentary elsewhere. Unfortunately, controversy has only increased since Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

Despite the fact Branzburg dealt with criminal proceedings and did not reach specifics of the subject now before us, the Court did say, 408 U.S. at 704, 92 S.Ct. at 2668:

"Freedom of the press is a 'fundamental personal right' which 'is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' "

Even more pointedly Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939), says: "The freedom of speech and of the press secured by the First Amendment, U.S.C.A.Const., against abridgment by the United States is similarly secured to all persons by the Fourteenth against abridgment by a state."

In the same case, 308 U.S. at 161, 60 S.Ct. at 150-151, this observation appears:

"This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men. It stresses, as do many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties. (emphasis supplied).

"In every case, therefore, where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights."

The foregoing effectively negates Winegard's claim to the effect there is no such thing as a constitutionally based newsperson's privilege.

Looking to the other side of the coin it will be recalled Graham and the Register do not assert a newsperson enjoys an absolute privilege from testifying in a civil proceeding. In essence they take the position Judge Oxberger was right in recognizing existence of a qualified privilege, subordinated if the questioner meets a four-factor test.

Winegard counters by positing that in event this court finds any or all of the four standards enunciated below are applicable they were met and respondent judge acted illegally in holding otherwise. For reasons later set forth we agree.

IV. Although this court is persuaded there exists a fundamental newsperson privilege we are equally satisfied it is not absolute or unlimited.

Admittedly the majority opinion in Branzburg fixed upon strong public interest in effective law enforcement but it also recognized "the longstanding principle that 'the public . . . has a right to every man's evidence', except for those persons protected by a constitutional, common-law, or statutory privilege, * * *." 408 U.S. at 688, 92 S.Ct. at 2660.

So, absent a local statute regarding a newsperson's privilege we...