Maynard, J., Dissenting Opinion, Case No.23873 State of West Virginia ex rel. The Charleston Mail Association & The Daily Gazette Company v. Hon. Lynn Ranson, et al.

No. 23873 - State of West Virginia ex rel. The Charleston Mail Association and The Daily Gazette Company v. Honorable Lyne Ranson, Judge of the Circuit Court of Kanawha County; William C. Forbes, Prosecuting Attorney for Kanawha County, and Frank E. West

Maynard, Justice, dissenting:

I believe the majority has created a "Fishing Expedition Exception" to the First Amendment guarantee of a free press. To continue the aquatic life metaphor, the majority is swimming in the jaws of a crocodile.

I strongly believe the First Amendment of the United States Constitution and Article III, Section 7 of the West Virginia Constitution absolutely bar this type of intrusion by the government into the files of a private company. This unwarranted invasion of the government into the private offices of a newspaper, which the majority allows, is an extremely dangerous threat to democracy. I believe the First Amendment absolutely prohibits this type of intrusion. Nonconfidential photographs taken by journalists in the course of newsgathering and kept as resource materials are protected from compelled disclosure under the free press and free speech guarantees of both our Federal and State Constitutions. Further, these constitutional provisions provide a reporter's privilege which is triggered where the material sought for disclosure was prepared or collected in the course of newsgathering.

To routinely permit resort to these resource materials jeopardizes the autonomy of the press. If not restricted, attempts to obtain evidence by subjecting the press to discovery would be widespread. This causes undue diversion of journalistic effort and disruption of press functions.

I believe a "reporter's shield" is inherent in the free press guarantees of both the Federal and State Constitutions. This Court previously recognized a reportorial or news reporter's privilege to decline to answer questions or to divulge information obtained in the course of newsgathering in an administrative setting in State ex rel. Hudok v. Henry, 182 W.Va. 500, 389 S.E.2d 188 (1989). Oddly, the majority in the case sub judice apparently refuses to recognize the same privilege in a criminal setting. The majority refuses, at least in part, to recognize the privilege because the Sixth Amendment to the United States Constitution and Article III, Section 14 of the West Virginia Constitution insure that a criminal defendant will have a fair trial. But, nowhere does the Sixth Amendment contain a provision that criminal defendants have a right to invade the premises and usurp the private property rights of a newspaper or any other news entity protected by the First Amendment.

The majority states that a criminal defendant can access privileged information after satisfying a tripartite balancing test, which is expressed in Syllabus Point 4: "(1) the requested information is highly material and relevant to the defendant's articulated theory or theories of his/her defense; (2) the requested information is necessary or critical to the defendant's assertion of his/her articulated theory or theories of defense; and (3) the requested information is not obtainable from other available sources." I do not understand what the majority is "balancing." I believe this is a three-part threshold test, however, it is not a "three-part threshold balancing test." The only "balancing" suggested in the majority opinion comes later.

After the defendant meets the tripartite test, the majority requires the circuit court to conduct an in camera review of the privileged material. During this review, the majority suggests that the trial judge balance the public's right to a free press with the defendant's right to a fair trial. They even state that they agree with this balancing test as it was adopted by the Minnesota Supreme Court; however, they do not state that West Virginia courts should or must balance these competing interests. Rather, the majority states that the judge must determine in camera which "information . . . the court deems to be relevant to the defendant's articulated theory or theories of the defense." After making this single determination, the court must then release that information to the defendant. I believe additional considerations are necessary to insure the press can freely collect and edit news, unhampered by repeated demands for its resource materials.

The majority also fails to enlighten the media as to how the privileged information is to get from the newspaper's office to the judge's office. Is the judge, who is an official of the government, to go to the newspaper office and search through the files? Will the newspaper be forced to load up its files and deliver them to the judge? Can the defendant, with his lawyer, go to the newspaper office and search through the files? I do not know if this is scary to anyone else, but it scares the daylights out of me. This is the kind of thing that goes on in the Banana Republics of Central America, but not here!

I pause here to note the defendant's request was based solely on the mere hope that some exculpatory material might show up. The defendant states:

There may be exculpatory information contained in the newspaper's photographs not accessible elsewhere. The Defendants contend that the newspaper's photographs may have been taken from a different angle from other photographs which would show evidence that would not be available anywhere else. . . . [The police officers] prior statement, possibly inconsistent, should be produced to the Defendant. (Emphasis added).

How can this be called anything but a fishing expedition? I do not think this raw speculation justifies allowing a criminal defendant to use the power of the state to invade the files of a private company. Criminal defendants can now use this guesswork scheme as a pretext for delay. I believe the majority could better justify what they have allowed today if there was clearly exculpatory evidence; however, the defendant has made no showing the newspaper has anything that is useful or valuable to him.

To the extent America has been able to survive and thrive, we must credit the First Amendment with being one of the main reasons. Whether you like the press or not - and a lot of people in public life do not - if you love freedom and democracy, you better zealously support and protect the First Amendment.

If this Court is going to balance the First Amendment guarantee of a free press against a criminal defendant's Sixth Amendment right to a fair trial, I have no trouble deciding which side of the issue I come down on.

For all of the reasons stated above, I respectfully dissent.