Delaney v. Superior Court

Page 753

268 Cal.Rptr. 753

50 Cal.3d 785, 789 P.2d 934, 58 USLW 2670, 17 Media L. Rep. 1817

Sean Patrick DELANEY, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent Roxana KOPETMAN, et al., Real Parties in Interest.

No. S006866.

Supreme Court of California In Bank.

May 3, 1990.

Rehearing Denied July 11, 1990.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Michael Updike and Albert J. Menaster, Los Angeles, Deputy Public Defenders, John A. Vander Lans, City Prosecutor, Robert R. Recknagel, Asst. City Prosecutor, Steven Shaw and Gerry L. Ensley, Deputy City Prosecutors, for petitioners.

No appearance for respondent.

Gibson, Dunn & Crutcher, Rex S. Heinke, Kelli L. Sager, Sheila R. Caudle, William A. Niese and Glen A. Smith, Los Angeles, for real parties in interest.

EAGLESON, Justice.

The issues in this case are: (1) whether the term "unpublished information" in the California newsperson's shield law (Cal. Const., art. I, § 2, subd. (b); Evid.Code, § 1070) includes a newsperson's nonconfidential, eyewitness observations of an occurrence in a public place; and, (2) if so whether a newsperson can nevertheless be held in contempt for refusing to disclose such information in a criminal proceeding.

As we shall explain, we hold the shield law's broad definition of "unpublished information" does not require a showing by the newsperson that the information was obtained in confidence. We further hold, however, that a newsperson's protection under the shield law must yield to a criminal defendant's constitutional right to a fair trial when the newsperson's refusal to disclose information would unduly infringe on that right. In this case, the trial court correctly determined that the balance between the rights of the newspersons and the defendant weighs in favor of compelled disclosure. We affirm the judgment of the Court of Appeal.

FACTS

Underlying Facts

Real parties in interest, Los Angeles Times reporter Roxana Kopetman and photographer Roberto Santiago Bertero, were accompanying members of a Long Beach Police Department task force on patrol. (For convenience we will sometimes refer collectively to Kopetman and Bertero as the reporters.) The officers observed Sean Patrick Delaney and a companion seated on a bench in the Long Beach Plaza Mall. A plastic bag of a type often used to store narcotics was protruding from Delaney's shirt pocket. The officers inquired about the contents of the bag, and Delaney removed it from his pocket to show that it contained a piece of gold and a piece of jewelry. He told the officers he intended to pawn the items at the mall. Because no pawnshops were in the mall, the officers became suspicious and asked Delaney for his identification. Delaney reached for a jacket lying next to him on the bench as if to get his wallet. According to the officers, they asked Delaney before he picked up the jacket if they could check it for weapons. He allegedly consented to the search. An officer ran his fingers along the outside of the jacket and felt a hard object in its pocket. He reached inside and retrieved a set of brass knuckles, which Delaney claimed was a key chain.

Four days later, the Los Angeles Times (hereafter the Times) published an article about the police task force. The article included information regarding the police contact with Delaney but did not refer to whether he had consented to the search of his jacket pocket.

Procedural History

Delaney was charged in a misdemeanor complaint with possession of brass knuckles in violation of Penal Code section 12020, subdivision (a). He moved to suppress evidence of the brass knuckles, arguing that he had not consented to the patdown search of his jacket and that the resulting seizure of the brass knuckles was therefore illegal because the officers had lacked a reasonable suspicion that he was armed. Delaney subpoenaed the reporters to testify at the suppression hearing in municipal court. The reporters moved to quash the subpoenas, contending they could not be compelled to testify because their eyewitness observations of the public search and seizure constituted "unpublished information" protected by the newspersons' shield law from disclosure. The motions were denied.

Following testimony by the officers at the suppression hearing, the reporters were called to testify by the prosecution to demonstrate the legality of the seizure. Their testimony established that each of them observed the events leading to the seizure and that each was situated in a position to observe whether Delaney had consented to the search of his jacket. The reporters, however, refused to answer any questions relating to whether Delaney had consented. The municipal court concluded that the shield law did not apply to the reporters' eyewitness observations of the nonconfidential, public circumstances of the search and seizure. The court further found that, even if the shield law applied, the need for the reporters' presumably disinterested testimony on the consent issue outweighed their claim of immunity under the shield law. The court cited both reporters for contempt.

The reporters filed petitions for writs of habeas corpus in the superior court. That court found the shield law provided the reporters with immunity from contempt and granted their petitions.

Delaney and the People of the State of California (through the Long Beach City Prosecutor) filed a joint petition in the Court of Appeal seeking to vacate the orders of the superior court that granted the reporters' habeas corpus petitions. (Delaney's misdemeanor prosecution has been suspended pending final resolution of the reporters' contempt citations.) The Court of Appeal held the shield law does not give a newsperson the right to refuse to testify as to his observations of a public event and ordered the superior court to vacate its orders granting the petitions for writs of habeas corpus. The Court of Appeal's decision was initially unanimous, but after real parties petitioned for rehearing, one justice changed her position and filed a dissenting opinion.

DISCUSSION

I. History of California's Shield Law

Newspersons had no privilege or immunity under common law to refuse to disclose the identity of their confidential sources. (Ex Parte Lawrence and Levings (1897) 116 Cal. 298, 300, 48 P. 124 [upholding contempt citations issued to a newspaper reporter and editor for refusing to disclose confidential sources to the state Senate]; Mitchell v. Superior Court (1984) 37 Cal.3d 268, 274, fn. 3, 208 Cal.Rptr. 152, 690 P.2d 625 [noting prohibition in Evidence Code section 911 of common law privileges]; Tent. Recommendation and Study Relating to the Uniform Rules of Evidence, art. V, Privileges (Feb. 1964) 6 Cal. Law Revision Com. Rep. (1964) p. 488 [noting that "the newsmen's privilege is entirely alien to the common law"].) ¹

In 1935 the Legislature passed the first shield law. (Stats.1935, ch. 532, § 1, pp. 1608-1610.) The statute, which was codified as Code of Civil Procedure section 1881, subdivision 6, provided that newspaper employees could not be adjudged in contempt for refusal to disclose their sources to courts or legislative or administrative bodies. Subsequent amendments extended the immunity to employees of radio and television stations, press associations, and wire services. (Stats.1961, ch. 629, § 1, pp. 1797-1798.) In 1965 the Legislature transferred these statutory provisions to Evidence Code section 1070, which became effective in 1967. (Stats.1965, ch. 299, § 2, pp. 1297, 1323-1335; Evid.Code, § 12.) ²

In 1972, a plurality of the United States Supreme Court concluded that the First Amendment to the federal Constitution does not provide newspersons with even a qualified privilege against appearing before a grand jury and being compelled to answer questions as to either the identity of news sources or information received from those sources. (Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626.) The high court made clear, however, that state legislatures are "free, within First Amendment limits, to fashion their own standards." (Id., at p. 706, 92 S.Ct. at p. 2669.) ³

In 1974 the California Legislature amended section 1070 to its present form, apparently in response to Branzburg, supra, 408 U.S. 665, 92 S.Ct. 2646. (Stats.1974, ch. 1323, § 1, p. 2877; Stats.1974, ch. 1456, § 2, p. 3184.) That amendment expanded the scope of the shield law to protect against the compelled disclosure of "unpublished information" as well as sources.

In June 1980, California voters approved Proposition 5, a state constitutional amendment proposed by the Assembly. (Assem. Const. Amend. No. 4, Stats.1978 (1977-1978 Reg.Sess.) res. ch. 77, pp. 4819-4820.) The proposition incorporated language virtually identical to section 1070 into the California Constitution, article I, section 2, subdivision (b). ⁴

II. Scope of the Shield Law

Article I, section 2(b) provides that a newsperson "shall not be adjudged in contempt ... for refusing to disclose the source of any information procured while so connected or employed [as a newsperson] ... 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.) ⁵ Stated more simply, article I, section 2(b) protects a newsperson from being adjudged in contempt for refusing to disclose either: (1) unpublished information, or (2) the source of information, whether published or unpublished. ⁶

The parties agree there is no attempt to compel the reporters to reveal the identity of a source. Delaney was the source of whatever information the reporters may have as to whether he consented to the police search of his jacket, and his identity is of course already known. ⁷ Rather, Delaney seeks only the reporters' testimony as to whether he consented to the search. The reporters do not contend ...