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In re Vrazo

Decided: December 2, 1980.

IN THE MATTER OF THE GRAND JURY SUBPOENA OF FAWN VRAZO


Simpson, J.A.D. (temporarily assigned).

Simpson

[176 NJSuper Page 457] Petitioner, a reporter with a Philadelphia newspaper, the Bulletin , moves to quash a subpoena requiring her to appear and testify before the Camden County Grand Jury. R. 1:9-1 and 2. Fawn Vrazo is a Pennsylvania resident and her appearance was

pursuant to the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. N.J.S.A. 2A:81-18 et seq. At a hearing before the Court of Common Pleas of Philadelphia County she did not oppose the issuance of the subpoena-with full reservation of her right to litigate, in the New Jersey courts, claimed privileges or other constitutional protections not to appear or testify before the grand jury.

The operative facts are not in dispute. The Camden Grand Jury is investigating allegations of theft by deception, N.J.S.A. 2C:20-4, as a result of an article written by Vrazo in the March 23, 1980 issue of the Bulletin. The article reports the results of an investigation by Vrazo and Bulletin staff reporters John Fuchs and William P. Barrett. Camden City public payroll irregularities are charged, including allegations that "double dippers" (persons holding two jobs simultaneously) are "no-show" or "part-show" workers who are paid from public funds for hours they do not actually work. The article reports details obtained from confidential sources, as well as personal surveillance by Vrazo of alleged offenders.

By consent, the appearance date of the subpoena has been continued until the decision on this motion to quash. Petitioner claims the protection of the newsperson's privilege, Evid.R. 27 (N.J.S.A. 2A:84A-21); the prosecutor concedes the privilege extends to confidential sources, but seeks Vrazo's appearance and testimony pursuant to the "eyewitness" exception under N.J.S.A. 2A:84A-21a (subdivision h). Petitioner and prosecutor also disagree as to whether the privilege has been waived by previous disclosure pursuant to Evid.R. 37 (N.J.S.A. 2A:84A-29).

I. The Constitutions

The First Amendment to the United States Constitution guarantees freedom of the press. So does Article I, paragraph 6 of

the 1947 New Jersey Constitution. In Branzburg v. Hayes , 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), the Supreme Court of the United States noted that at common law there was no privilege of newspersons to refuse to reveal confidential sources or information to a grand jury. The court recognized the collision of great principles: without some protection for seeking out the news, freedom of the press could be eviscerated vs. the public's right (through the grand jury) to every man's evidence relative to an investigation into the commission of crime. For a 5-4 majority Justice White wrote:

The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not [ Id. , 408 U.S. at 667, 92 S. Ct. at 2649, 33 L. Ed. 2d at 631 (1972)]

Justice White's majority opinion additionally stated:

There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute. [ Id. , 408 U.S. at 706, 92 S. Ct. at 2665, 33 L. Ed. 2d at 654 (1972)]

Although the claim was advanced in In re Bridge , 120 N.J. Super. 460 (App.Div.1972), certif. den. 62 N.J. 80 (1972), cert. den. 410 U.S. 991, 93 S. Ct. 1500, 36 L. Ed. 2d 189 (1973), no New Jersey court has even construed our state constitutional guaranty of liberty of the press to provide a reporter's privilege. It is also unnecessary to address such an inquiry at this time, because our Legislature has enacted a "shield law."

II. The Shield Law

Statutes in a number of jurisdictions grant newspersons privileges, of varying breadth and nature, not to disclose sources or information obtained in their professional capacity. Annotation, "Privilege of ...


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