In Re Willon

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1082 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1083 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1084 OPINION In this writ proceeding, a reporter and news director of a local television station seek relief from contempt after they refused to disclose the *Page 1085 identity of a person who provided information about a pending criminal prosecution in violation of a protective ("gag") order. Petitioners contend that California's shield law, California Constitution article I, section 2, subdivision (b) (hereafter, article I, section (2)(b)), immunizes them from contempt under these circumstances. Respondent, the Santa Clara County Superior Court, maintains that the contempt order was necessary to deter future violations and thereby protect the defendant's right to a fair trial. We hold that the shield law protects the news media from contempt absent a specific…

I concur in the judgment. I write separately, however, because I do not believe this case requires us to set down a yardstick rule for future hearings. We are all in agreement that defendant's fair trial rights cannot be prejudiced by publicity, whether leaked against a judge's order, or otherwise in the normal course of events. We are agreed that the trial court's duty is to hold a hearing whenever necessary to ascertain whether a fair trial is jeopardized. Since that did not *Page 1103 take place in this case we correctly nullify the contempt finding. We need go no further in this writ proceeding. This court should not enter the legal thicket of creating a bright-line test for such similar hearings in the future. The debate over "substantial probability" or "reasonable likelihood" is one that will always be heavily nuanced by the unique facts of each case. We are here visiting extra work on trial courts in high publicity cases which often may result in the proverbial exercise of fitting a square peg into a round hole. I would defer to the Supreme Court, which is in a position to decide this matter definitively. A petition for a rehearing was denied August 13, 1996, and…

In this writ proceeding, a reporter and news director of a local television station seek relief from contempt after they refused to disclose the identity of a person who provided information about a pending criminal prosecution in violation of a protective (“gag”) order. Petitioners contend that California’s shield law, California Constitution article I, section 2, subdivision (b) (hereafter, article I, section (2)(b)), immunizes them from contempt under these circumstances. Respondent, the Santa Clara County Superior Court, maintains that the contempt order was necessary to deter future violations and thereby protect the defendant’s right to a fair trial. We hold that the shield law protects the news media from contempt absent a specific showing that nondisclosure of the source will create a substantial probability of injury to the criminal defendant’s right to a fair trial. Accordingly, we will grant petitioners’ request for a writ of habeas corpus or certiorari and annul the judgment of contempt.

Background

Petitioner Beth Willon is a news reporter for KNTV Channel 11 in San Jose. Petitioner Terrence McElhatton is the news director of KNTV. On February 14, 1996, jury…