Hammarley v. Superior Court

Opinion

Petitioner seeks a writ of review to annul a contempt judgment for refusing an order of respondent court to comply with a subpoena duces tecum. The threshold issue presented by this proceeding is the scope of protection accorded by Evidence Code section 1070 to information acquired by a newsman in the course of his professional activities which has not been disseminated to the public. (Hereinafter all statutoiy references are to the Evidence Code.) We hold the material sought by the subpoena duces tecum is privileged. We further decide, however, after weighing the competing interests disclosed by the record before us, that the newsman’s statutory privilege set forth in section 1070 must here give way to the constitutional rights of the real parties in interest to a fair trial. Since the order of the court requiring obedience to the subpoena duces tecum is valid, we shall affirm the judgment of contempt.

At the time of the events described hereinafter, petitioner John Hammarley was a newspaper reporter for the Sacramento Union. Real parties in interest are defendants in a criminal prosecution charged with the murder of Ellen Delia; the criminal action is currently pending in respondent superior court. For the sake of simplicity, in this opinion we shall refer to real parties in interest as defendants.

In December 1977, there appeared under petitioner’s byline in the Sacramento Union three articles about the so-called “Mexican Mafia”

I

nasmuch as petitioner does not claim under either the federal or state Constitutions (cf. CBS, Inc. v. Superior Court (1978) 85 Cal.App.3d 241 , 250-253 [ 149 Cal.Rptr. 421 ]), we turn immediately to a consideration of the statute. We are concerned here with subdivisions (a) and (c) of section 1070. Insofar as relevant to these proceedings, subdivision (a) provides as follows: “A . . . reporter . . . connected with or employed upon a newspaper, magazine, or other periodical publication . . . cannot be adjudged in comtempt by a judicial. . . body having the power to issue subpoenas, for refusing to disclose, in any proceeding . . . the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” (Italics added.) Subdivision (c) provides, “As used in this section, ‘unpublished information’ includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.” (See fn. 2, ante, pp. 394, for full text of§ 1070.)

In construing a statute we are mindful of the fundamental rule that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Tripp v. Swoap (1976) 17 Cal,3d 671 , 679 [ 131 Cal.Rptr. 789 , 552 P.2d 749 ]; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640 , 645 [ 335 P.2d 672 ].) We presume that every word, phrase and provision employed in the measure is intended to have meaning and to perform a useful function (Clements v. T. R Bechtel Co. (1954) 43 Cal.2d 227 , 233 [ 273 P.2d 5 ]); a construction making some of the words of the enactment surplusage is to be avoided. (People v. Gilbert

Notwithstanding the trial court’s reliance on Rosato that case does not support the proposition that the privilege encompasses only those unpublished materials which might lead to disclosure of a confidential source. The Rosato court was not faced with the question presented here. The issue there was whether newsmen to whom information had been divulged in violation of a judicial order of nondisclosure could be compelled to disclose who among the court’s officers subject to the order had provided the information. The Rosato court first determined that the information sought by the trial court was within the scope of the privilege against source disclosure, but then held that the privilege must nonetheless yield to the trial court’s exercise of its inherent power to control its own proceedings and officers. Accordingly, the newsmen in Rosato could be compelled, on pain of contempt, to answer questions directed to the identity of any source from among those persons subject to the trial court’s order. The issue in Rosato was the scope of acknowledged source protection—not the perimeters of the “unpublished information” privilege.

Accordingly, we hold that the statutory privilege protecting unpublished information is not limited to material which might lead to the disclosure of a newsman’s confidential sources, but encompasses all information acquired by the newsman in the course of his professional

Against petitioner’s claim of statutory privilege, defendants interpose their fundamental right to a fair trial, claiming that refusal to enforce the subpoena duces tecum will deprive them of that right as secured by the due process guarantees of the federal and state Constitutions. (U.S. Const., Amends. V, VI, XIV; Cal. Const., art. I, § 15.)

In Chambers v. Mississippi (1973) 410 U.S. 284 [ 35 L.Ed.2d 297 , 93 S.Ct. 1038 ], a witness had confessed to the very crime for which defendant was on trial but defendant had been prevented by state rules of evidence from cross-examining him about his inculpatory statements and from producing other witnesses who had overheard his confessions. Holding that defendant had been denied a fundamental right by operation of the state rules the Supreme Court reversed, observing: “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations. The rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf have long been recognized as essential to due process.” (410 U.S. at p. 294 [35 L.Ed.2d at p. 308].)

Washington v. Texas (1967) 388 U.S. 14 [18 'L.Ed.2d 1019, 87 S.Ct. 1920 ], concerned a Texas statute which prohibited coparticipants charged with or convicted of the same crime from testifying for one another. Defendant was thus deprived of favorable testimony of a witness already convicted of the same crime for which he was on trial. The Supreme Court held that the Fourteenth Amendment due process clause incorporated the Sixth Amendment right of an accused to compulsoiy process for obtaining witnesses in his behalf and was therefore binding upon the states; because the state statute denied defendant the constitutional right to compulsory process, the conviction was reversed.

In a case dealing with the right of an accused to discover information concerning citizen complaints about past acts of violence by law enforcement officers, our Supreme Court stated: “Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all

At stake here is defendants’ right meaningfully to confront and cross-examine their primary accuser with the benefit of all evidence reasonably available to challenge his credibility. Petitioner’s interest is in the vindication of a privilege not to disclose unpublished information which here was freely volunteered with no pledge of confidentiality asked or given and which only fortuitously falls within the literal scope of section 1070 not because of a perceived need for confidentiality but because of the vagaries of editorial judgment.

The state may not abridge a defendant’s constitutional right to a fair trial by “denying the accused access to all evidence that can throw

The judiciary has a solemn obligation to insure that the constitutional right of an accused to a fair trial is realized. If that right would be thwarted by enforcement of a statute, the statute, as in Chambers v. Mississippi, supra, 410 U.S. 284 , and Washington v. Texas, supra, 388 U.S. 14 , must yield. This principle is particularly applicable where, as here, enforcement of the statute would not further its objectives. In the factual context of this case, vindication of the statutory policy underlying the unpublished information privilege of section 1070 is an abstraction. For that reason, any prospective burden on news gathering and related activities resulting from subordination of the privilege in this factual context is highly speculative and uncertain. Accordingly, the privilege must yield to defendants’ demonstrated need for the subpoenaed materials to insure their right to a fair trial.

While the trial court’s interpretation of the scope of section 1070 is erroneous, the order denying the motion to quash and commanding obedience to the subpoena duces tecum was, as we have seen, a proper disposition. The trial court’s ruling was made only after defendants, in response to petitioner’s claim of privilege, made an affirmative showing of the relevance of, need for and lack of alternate access to the subpoenaed materials. Petitioner also had the opportunity to show that the privilege applied and that it should prevail over defendants’ claimed right. The trial court’s order is supported by substantial evidence; it is within the jurisdiction of the court and a valid exercise of its power. Thus the trial court’s erroneous interpretation of section 1070 offers no excuse for petitioner’s refusal to comply with its order. (Cf. In re Marcario (1970) 2 Cal.3d 329 , 330 [ 85 Cal.Rptr. 135 , 466 P.2d 679 ]; In re Berry (1968) 68 Cal.2d 137 , 147-148 [ 65 Cal.Rptr. 273 , 436 P.2d 273 ].)

We emphasize that we are concerned in this proceeding only with the trial court’s order denying the motion to quash and directing petitioner to turn over to the court for in camera inspection the tapes, notes, etc., of the Gonzales’ interviews. Under the circumstances shown here, an in camera hearing is not inconsistent with section 915 which prohibits “disclosure of information claimed to be privileged ... in order

We deem it appropriate to conclude with these final ruminations. There is nothing in the record to suggest that petitioner arrogates to himself ultimate authority to arbitrate his own claim of privilege and we indulge no such assumption. Indeed, he has confided his dispute to the courts and we assume he will abide and be bound by the result of the judicial process. We would be blind to recent history, however, if we did not recognize that the instant litigation—so reminiscent of recent similar clashes of principle—has the potential to engender in the losing litigant intractable resistance to the judgment of the court. We point out for the benefit of the trial court that in the unlikely event of such resistance the wheels of justice must not be permitted to grind to a standstill. The constitutional right of defendants which we have here recognized is the right to a trial free of state-imposed impediments to its fair conduct. To that end, the newsman’s privilege—a creature of state law—must in the instant circumstances be subordinated. Beyond that, the state must make available its process to insure to the extent possible the availability to defendants of needed witnesses and evidence. But as we have suggested, the state has no unfailing mechanism for behavior modification, no infallible nostrum to reduce implacable defiance to compliant obedience anymore than it can guarantee absolutely the presence of essential witnesses to testify when needed. Hence denial of evidence such as this to an accused solely through the intransigence of a contemner would not implicate defendants’ constitutional right to a fair trial—a right inviolable through conduct that is strictly private and unofficial. Accordingly, it is clear that a contemner may not by his resistance to legal process prevent the trial of underlying criminal charges in circumstances such as these.

We have hypothesized a state of affairs which we do not anticipate will come to pass. Disobedience has been the exception, not the rule in our system because there is no principle of law in a democratic society which has a greater claim upon our allegiance than adherence to the rule of law. It is, after all, a small price to pay for a civilized society.

The judgment is affirmed.

Evans, J., and Reynoso, J., concurred.

Petitioner’s application for a hearing by the Supreme Court was denied May 10, 1979.