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07/01/83 STATE EX REL. GREEN BAY NEWSPAPER COMPANY

July 1, 1983

STATE EX REL. GREEN BAY NEWSPAPER COMPANY, TERRY ANDERSON AND MIKE SMOTHERS, PETITIONERS
v.
CIRCUIT COURT, BRANCH 1, BROWN COUNTY, THE HONORABLE RICHARD G. GREENWOOD, KENNETH J. PHILLIPS, JR., AND THE STATE OF WISCONSIN, RESPONDENTS; IN THE MATTER OF THE FINDING OF CONTEMPT IN STATE OF WISCONSIN V. KENNETH J. PHILLIPS, JR.; TERRY ANDERSON AND MIKE SMOTHERS, APPELLANTS V. CIRCUIT COURT FOR BROWN COUNTY, THE HONORABLE RICHARD G. GREENWOOD, PRESIDING, RESPONDENT



Case No. 82-2244-W: Review of a decision of the Court of Appeals. Case No. 83-133-CR: Appeal from an order of the Circuit Court for Brown County. Revising and remanding Court of Appeals opinion not submitted for publication. [Case No. 82-2244-W.] On by-pass from Court of Appeals. [Case No. 83-133-CR.]

Day, J.

The opinion of the court was delivered by: Day

Case No. 82-2244-W is a review of a decision of the court of appeals which denied a request by the petitioners for a supervisory writ to prohibit the enforcement of a trial court order requiring an in camera disclosure of the sources of news articles written by Terry Anderson and Mike Smothers (both will be referred to in this opinion as the reporters), reporters for the Green Bay Press-Gazette. Case No. 83-133-CR is an appeal from a contempt order of the Circuit Court for Brown County, Richard G. Greenwood, Judge. The reporters petitioned this court to bypass the court of appeals in that case. The petition for review in Case No. 82-2244-W and the petition to bypass in Case No. 83-133-CR were granted by this court on February 15, 1982 and the cases were consolidated for review.

The issue presented on review *fn1 is: Did the trial court, under the facts of this case, err in ordering an in camera inspection and requiring the reporters to reveal the identity of their news sources to the trial Judge?

We conclude the Judge erred in requiring in camera disclosure of the reporters' sources. Because the criminal defendant seeking in camera disclosure of the sources has failed to make a prima facie case for the use of compulsory process, we determine that the trial court's order of contempt cannot stand. We therefore reverse that order.

These cases arose as the result of news articles written by the reporters in the summer of 1982. The articles included information regarding the conduct of a John Doe investigation into the death of David Moureau on October 17, 1981.

As the result of the John Doe investigation, the Brown County District Attorney, Peter J. Naze, charged Robert S. Vertz (Vertz) with first-degree murder in connection with the death and Kenneth J. Phillips, Jr. (Phillips) with aiding and abetting first-degree murder. As part of their preparation for trial on these charges, both of these individuals filed motions for a change of venue. In connection with these motions, Judge Greenwood ordered all the news media in the area to furnish to defense counsel transcripts of broadcasts and copies of newspaper articles on the Moureau murder and John Doe investigation.

The Green Bay Press-Gazette, *fn2 employer of the two reporters involved in this case, complied with the order and furnished counsel with copies of articles written in connection with the murder and John Doe. Some of these articles, written by the two reporters, contained information about the John Doe and noted that the information was obtained from unnamed "sources." *fn3

At Phillips' request, Judge Greenwood subpoenaed the reporters to appear at a pretrial hearing with their notes on the articles they had written to give testimony as to the sources of the articles. The reporters and the newspaper filed a motion to quash the subpoenas on the grounds that the reporters had promised confidentiality to their sources and requiring disclosure of the identities of the sources would violate the reporters' qualified privilege of nondisclosure.

Judge Greenwood held several hearings on these and other motions. At one of the hearings, each reporter was called to testify. They testified in very general terms as to the number of sources for their articles. From their testimony it appears that between four and seven sources were used by the two reporters. The reporters also testified that all but one of the sources had been used before by them and that their news articles contained all of the substantive information that had been passed to them by the sources.

Judge Greenwood issued his decision denying the motion to quash on November 19, 1982, and ordered the reporters to appear before him in an in camera hearing. The purpose of the hearing was to take the reporters' testimony as to the identities of their sources so as to make a determination as to whether that information should be disclosed to Phillips.

The reporters appealed Judge Greenwood's order *fn4 and filed a petition for a supervisory writ. The court of appeals dismissed the appeal from the "final" order, denied the petition to appeal the non-final order and denied the petition for a supervisory writ. The latter decision was made on the grounds that Judge Greenwood's decision had been correct.

The reporters sought review of the court of appeals denial of the petition for a supervisory writ.

On January 17, 1983, the reporters appeared at an in camera hearing before Judge Greenwood. When asked to name their sources for the news articles, each reporter declined to do so. The in camera hearing was then moved to open court where Judge Greenwood again asked each reporter if he would be willing to name his sources in an in camera hearing. When each refused, he found each in contempt ...


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