In Green (27 Cal 3d at 59-62, 609 P2d at 504-506), the Supreme Court of California addressed a question similar to the one before us. Green is pertinent because the California capital punishment statute does not require that the murder be "in furtherance of" the felony.Summary of this case from People v. Cahill
Argued June 1, 1987
Decided July 7, 1987
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Lawrence E. Kahn, J.
Timothy B. Dyk, Murray A. Indick and Michael J. Hoblock, Jr., for appellant.
Sol Greenberg, District Attorney, pro se (George H. Barber and Michael J. Connolly of counsel), for Sol Greenberg, respondent. David A. Wait, Mark Dwyer and Sherrill R. Spatz for the New York State District Attorneys Association, amicus curiae.
The issue presented for our review in this case is whether the Shield Law (Civil Rights Law § 79-h) extends its protection to nonconfidential sources or information obtained in the course of gathering or obtaining news for publication. We hold that it does not.
In February 1986, Knight-Ridder's television station in Albany — WTEN-TV — broadcast on its evening newscast portions of an interview with Donald Bent, whose wife had then been missing for several days. The interview had been conducted by a news team led by a reporter employed by the television station. Approximately one minute of the taped interview was broadcast; the remainder of the interview has never been made public. It is not clear at this stage of the litigation what, if any, portions of the interview were conducted under a promise of confidentiality.
After Mrs. Bent was found dead in the trunk of an automobile, the District Attorney began a Grand Jury investigation into the death and Donald Bent became a suspect. In furtherance of the investigation, a subpoena duces tecum was served on WTEN demanding "all video tapes regarding an interview" with Donald Bent. In response to the subpoena, WTEN produced the video tape of the newscast along with the written introduction to the broadcast that had been read from the studio and a list of the "supers" that had appeared during the broadcast. The station declined to produce the nonbroadcast portions of the interview gathered by the news team during the preparation of the report.
Knight-Ridder then moved to quash the subpoena duces tecum, arguing alternatively that New York's Shield Law (Civil Rights Law § 79-h) and the First Amendment to the United States Constitution provided a privilege as to the production of the requested material. Supreme Court, Albany County, granted the motion to quash, relying exclusively on the statutory ground. The Appellate Division reversed, holding that the Shield Law does not protect information not received in confidence, and accordingly remitted the matter to Supreme Court for an in camera inspection of the taped interview with Donald Bent to determine what portions, if any, of such interview were conducted confidentially ( 119 A.D.2d 68). Subsequently, after we dismissed an appeal taken as of right ( 68 N.Y.2d 997), the Appellate Division granted leave to appeal to this court on a certified question.
The Appellate Division also found no merit to Knight-Ridder's First Amendment claim.
The Appellate Division certified the following question: "Did this court err in reversing Supreme Court's order and remitting the matter to the Supreme Court for an in-camera inspection of the taped interview with Donald Bent to determine what portions, if any, of such interview, were conducted confidentially?" Although Donald Bent was indicted subsequent to the Appellate Division decision, and the questions presented by this appeal are thus moot, the case is one which should be preserved as an exception to the mootness doctrine (see, Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707; Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 381).
IIThere can be no doubt that the Legislature in enacting and subsequently amending the Shield Law (Civil Rights Law § 79-h) has expressed a strong desire to safeguard the free channels of news communication (see, Matter of Beach v Shanley, 62 N.Y.2d 241, 249-251; Oak Beach Inn Corp. v Babylon Beacon, 62 N.Y.2d 158). In its deliberative process, the Legislature has presumably debated the efficacy of granting broad protection to the press, weighed competing policy considerations, and reached a formulation that in its view serves the best interest of the public. Whatever the view of this court may be as to the wisdom of the scope of the protection afforded by the statute, it may not substitute its view for that decided upon by the Legislature. Because the statute here, as enacted, interpreted and amended, clearly does not extend its protection to nonconfidential sources or information obtained in the course of gathering or obtaining news for publication, the Appellate Division correctly declined to quash the subpoena and the certified question must be answered in the negative.
New York's Shield Law was enacted in 1970 in response, in part, to attempts by the Federal Government to compel the disclosure of confidential information and sought to protect newspersons from contempt charges for failing to disclose such information or its sources that were obtained during the news gathering process (Governor's Mem, 1970 N.Y. Legis Ann, at 508). In the years that followed, the appellate courts in every judicial department of this State were unanimous in ruling that the statute did not protect nonconfidential information (see, People v Le Grand, 67 A.D.2d 446 [2d Dept]; Matter of WBAI-FM v Proskin, 42 A.D.2d 5 [3d Dept], affg 68 Misc.2d 355; People [Fischer] v Dan, 41 A.D.2d 687 [4th Dept], appeal dismissed 32 N.Y.2d 764, lv denied 32 N.Y.2d 613; Matter of Wolf v People, 39 A.D.2d 864 [1st Dept], affg 69 Misc.2d 256). In reaching this conclusion, courts noted that the privilege must be strictly construed as it provides an exception to the fundamental duty of all citizens to disclose information to an authorized governmental body (Matter of WBAI-FM v Proskin, supra, at 7). Specifically rejected was the contention that since the statute does not explicitly state that the privilege applies only to confidential communications, no requirement of confidentiality exists. Indeed, it was pointed out that in signing the law, Governor Rockefeller cited the "'real and imminent threat'" of requiring "'the disclosure of information obtained by reporters in confidence'" (id., at 6, quoting 1970 N.Y. Legis Ann, at 508 [emphasis supplied]). Further, it was recognized that the entire thrust of the Shield Law was aimed at encouraging a free press by shielding those communications given to the news media in confidence (id., at 9 [Cooke, J., dissenting]; Matter of Wolf v People, supra) and in this regard was similar to other privileges which are generally based on confidential relationships (Matter of WBAI-FM v Proskin, supra, at 7; Matter of Wolf v People, supra; see also, Matter of Andrews v Andreoli, 92 Misc.2d 410, 416-421).
In 1981, the Legislature sought to amend the statute to strengthen its protection for newspersons. Among the provisions proposed was that the protection afforded by the law should apply whether or not the information was imparted under a cloak of confidentiality. Other proposed amendments sought to broaden the definition of the terms "professional journalist" and "news", and sought to ensure that newspersons could not be held in contempt even if the material or the identity of the material's source was highly relevant to a particular governmental inquiry and the information was not solicited by the newsperson before its disclosure to him. Although these latter proposals were included in the legislation that was approved by the Legislature and signed by the Governor, of significance here is that the proposal seeking to eliminate the confidentiality requirement, among other proposals, was deleted from the version of the bill that was ultimately approved.
In 1975, the Legislature had amended the statute by adding a provision which gave the news media immunity from disclosing sources of information in Grand Jury appearances. Further attempts at extending the scope of the statute in 1979 were not reported out of committee.
After the passage of the 1981 amendments, the question whether the statute's protection extended to nonconfidential information was again litigated and again, the unanimous appellate authority in this State concluded that the cloak of confidentiality requirement still obtained (see, People v Korkala, 99 A.D.2d 161 [1st Dept]; Hennigan v Buffalo Courier Express Co., 85 A.D.2d 924 [4th Dept]; see also, Matter of Pennzoil Co., 108 A.D.2d 666; People v Troiano, 127 Misc.2d 738; First United Fund v American Banker, 127 Misc.2d 247; People v Bova, 118 Misc.2d 14; contra, Wilkins v Kalla, 118 Misc.2d 34 ; People v Iannaccone, 112 Misc.2d 1057). In Korkala, the First Department noted that, in 1981 "the very provision contained in the initial version of the bill that would have eliminated the 'cloak of confidentiality' requirement for invoking the Shield Law was deleted from the version finally passed" and concluded that such development "persuasively suggests that the Legislature's intent * * * was not to create an 'absolute privilege' against disclosure" ( 99 A.D.2d 161, 165, 166, supra).
It is well settled that the legislative history of a particular enactment must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with and to the extent it left it unchanged, that it accepted (Arbegast v Board of Educ., 65 N.Y.2d 161, 169; Hammelburger v Foursome Inn Corp., 54 N.Y.2d 580, 588; Engle v Talarico, 33 N.Y.2d 237, 242). Where the interpretation of a statute is well settled and accepted across the State, it is as much a part of the enactment as if incorporated into the language of the act itself (Pouch v Prudential Ins. Co., 204 N.Y. 281, 287; see, McKinney's Cons Laws of NY, Book 1, Statutes § 72). Consequently, any intention to change such a well-established rule must emanate from the Legislature and may not be imputed to the Legislature in the absence of a clear manifestation of such intent (Hammelburger v Foursome Inn Corp., supra, at 592, citing Matter of Delmar Box Co. [Aetna Ins. Co.], 309 N.Y. 60, 66). Especially is this so where the Legislature has acted upon a statute with knowledge of uniform judicial decisions interpreting the statute as then existing, a proposal is offered to rebut the interpretation, and the actions taken do not alter the judicial interpretation, for then the Legislature must be regarded as having legislated in the light of, and as having accepted, such interpretation (Engle v Talarico, supra, at 242; Orinoco Realty Co. v Bandler, 233 N.Y. 24, 30; see, State of New York v Mobil Oil Corp., 38 N.Y.2d 460, 465; RKO-Keith-Orpheum Theatres v City of New York, 308 N.Y. 493, 500). Indeed, we have recently relied on unsuccessful attempts in the Legislature to amend a statute following our interpretation of the statute as evidence that our interpretation correctly reflected the intent of the Legislature (see, Matter of Bliss v Bliss, 66 N.Y.2d 382, 389; see also, Heller v U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 411; New York State Bankers Assn. v Albright, 38 N.Y.2d 430, 438). Thus, it is a recognized principle that where a statute has been interpreted by the courts, the continued use of the same language by the Legislature subsequent to the judicial interpretation is indicative that the legislative intent has been correctly ascertained (Matter of Curtin v City of New York, 287 N.Y. 338, 342; Matter of Gilmore v Preferred Acc. Ins. Co., 283 N.Y. 92, 97; Transit Commn. v Long Is. R.R. Co., 253 N.Y. 345, 354-355). The underlying concern, of course, is that public policy determined by the Legislature is not to be altered by a court by reason of its notion of what the public policy ought to be (Hammelburger v Foursome Inn Corp., supra, at 592; see, Waddey v Waddey, 290 N.Y. 251, 256; cf., Flanagan v Mount Eden Gen. Hosp., 24 N.Y.2d 427, 436 [Breitel, J., dissenting]).
The dissent's reliance on the familiar axiom that in construing a statute, a court should look first to the particular statutory language and be guided by its natural and most obvious meaning (dissenting opn, at 162) is misplaced. Such an approach fails to recognize that where a court is faced with a long-standing interpretation of a statute, a vigorous attempt to legislatively amend the settled interpretation, and the legislative renunciation of such attempt, the absence of facial ambiguity is not conclusive; rather "[s]ound principles of statutory interpretation * * * require examination of a statute's legislative history and context to determine its meaning and scope" (New York State Bankers Assn. v Albright, 38 N.Y.2d 430, 434; see, Uniformed Firefighters Assn. v Beekman, 52 N.Y.2d 463, 471).
Consideration of all the circumstances surrounding the 1981 amendment to the Shield Law leads inexorably to the conclusion that the Legislature, by considering and rejecting an explicit provision addressing the issue facing the court today, did not intend the Shield Law to create an "absolute privilege" against disclosure. That the 1981 amendments did not alter the established requirement of confidentiality was noted by the Attorney-General who, in analyzing the 1981 amendment at the time of its enactment, specifically remarked that the legislation did not protect journalists when the requested information was not confidential (Mem of Attorney-General, July 8, 1981, Governor's Bill Jacket, L 1981, ch 468). Of course, the opinion of the Attorney-General as to the scope of the statute is not binding on this court, nor is it dispositive of the intent of the Legislature. Nevertheless, it can hardly be dismissed as "essentially irrelevant in this case" (dissenting opn, at 166). To the contrary, we have long recognized that a contemporaneous interpretation of a statute is entitled to considerable weight in discerning legislative intent and have specifically relied in this respect on correspondence in the Bill Jacket from the Attorney-General (see, e.g., Matter of Niagara Mohawk Power Corp. v Public Serv. Commn., 69 N.Y.2d 365, 374; see also, Shiles v News Syndicate Co., 27 N.Y.2d 9, 20 [Breitel, J., dissenting]; McKinney's Cons Laws of NY, Book 1, Statutes § 128). All the more relevant is the opinion of the Attorney-General in this case for nothing else in the Governor's Bill Jacket concerning the 1981 amendments discusses the confidentiality requirement. The legislative history relied on by the dissent is confined exclusively to the Memorandum prepared by the legislative sponsor (see, dissenting opn, at 164, citing 1981 Legis Ann, at 257-258). Certainly, it is true, as the sponsor's Memorandum makes clear, that the proposed amendments sought to persuade the Legislature to overrule prior court decisions requiring a cloak of confidentiality. The views of one legislator, however, are not necessarily revealing of the legislative intent (see, Matter of Delmar Box Co. [Aetna Ins. Co.], 309 N.Y. 60, 67, supra; Matter of Morse [Bank of Am.], 247 N.Y. 290, 302-303; Woollcott v Shubert, 217 N.Y. 212, 221); rather, the dispositive fact here is that the Legislature adopted an amendment which on its face does not address confidentiality but did address other concerns about the scope of the statute. Thus, despite the clear attempt by the sponsor to alter the settled rule, the Legislature did not accept the sponsor's recommendation, and in so doing confirmed the prior court decisions requiring confidentiality as a prerequisite to protection under the Shield Law. In sum, the long-standing interpretation of the Shield Law should not be judicially abrogated where the Legislature has considered that interpretation and explicitly declined to amend the statute to overcome it.
Moreover, it is worth noting that the confidentiality requirement, which has been the settled law of this State for over a decade, is consistent with the legislative history surrounding the enactment of the Shield Law in 1970. In fact, the Bill Jacket before Governor Rockefeller is replete with references to the importance of protecting reporters' confidential sources and information. In any event, whether or not the Legislature created the confidentiality requirement in 1970 is not dispositive for such a requirement became the well-settled law by 1981 and the Legislature's refusal to repudiate that interpretation, despite an explicit proposal to that effect, is compellingly persuasive evidence of the legislative intent. Nor is the fact that this court had never decided the issue entitled to great weight in determining the legislative intent in 1981. In fact, the Legislature was aware in 1981 that the controlling authority in every judicial department in this State required confidentiality; indeed, it was for this reason that the sponsor of the proposed amendment sought to amend the statute. Under these circumstances, the failure of the Legislature to adopt the proposed amendment abrogating the confidentiality requirement is persuasive evidence of the legislative intent.
See, e.g., letter of New York State Publishers Association, Apr. 22, 1971; mem of New York State Broadcasters Association, May 9, 1970; letter of WCBS, Apr. 30, 1970; letter of WNEW-TV, May 11, 1970; affidavit of Walter Cronkite, Apr. 1, 1970; affidavit of Mike Wallace, Mar. 31, 1970; affidavit of Dan Rather, Mar. 31, 1970, all contained in the Governor's Bill Jacket, L 1970, ch 615.
Neither of our recent decisions in Matter of Beach v Shanley ( 62 N.Y.2d 241) or Oak Beach Inn Corp. v Babylon Beacon ( 62 N.Y.2d 158) is inconsistent with the confidentiality requirement as confidentiality was not at issue in either case and as we have long recognized, "[p]rinciples are not established by what was said, but by what was decided, and what was said is not evidence of what was decided, unless it relates directly to the question presented for decision" (People ex rel. Metropolitan St. Ry. Co. v State Bd. of Tax Commrs., 174 N.Y. 417, 447; see, People v Bethea, 67 N.Y.2d 364, 368, n).
IIIIn regard to the constitutional claims raised by Knight-Ridder, we agree with the Appellate Division that whatever qualified privilege may exist under the First Amendment to the United States Constitution does not protect the material sought here since the taped interview presumably contains relevant information necessary to the Grand Jury investigation and unavailable from other sources (see, Branzburg v Hayes, 408 U.S. 665, 710; People v Korkala, 99 A.D.2d 161, 166-168, supra). Any claims under the State Constitution are not preserved for our review (People v Lancaster, 69 N.Y.2d 20, 31).
Based on the foregoing, the order of the Appellate Division should be modified, with costs, to the extent of dismissing the motion because of mootness and the certified question answered in the negative.
Judges SIMONS, TITONE and HANCOCK, JR., concur with Judge ALEXANDER; Judge BELLACOSA dissents and votes to reverse in a separate opinion in which Chief Judge WACHTLER and Judge KAYE concur.
Order modified, with costs to respondent, to the extent of dismissing the motion to quash for mootness and, as so modified, affirmed. Certified question answered in the negative.
By enactment of a strong Shield Law (Civil Rights Law § 79-h) protecting sources and materials gathered from news sources, New York became the first State to broadly enhance the root freedom of the press right, itself traceable to the free press provision of the New York Constitution (art I, § 8). New York should not, through its judiciary, encumber the plain legislative policy choices made in the governing statute's own words. Since the majority's holding does that, I dissent.
The District Attorney's effort to penetrate that shield by subpoena to acquire outtakes of a televised news item should not be judicially enforced because confidentiality in the gathering of the news from a news source should not be added by Judges as a condition to the invocation of New York's Shield Law protections. That judicial gloss transforms the statute. Indeed, the majority opinion cannot disguise what it effects by "interpretation", "judicial construction" and "legislative intent". They functionally enact their own amendment to the core provision of the Shield Law by striking the word "any" and substituting the word "some", so that the protection is now only afforded to "some news" rather than "any news", as the Legislature enacted it and as the Governor signed it into law. The statutory language, its legislative history, and our recent precedents involving the Shield Law, all buttress the analysis which should result in reversal and quashing of the subpoena.
The majority's holding produces a classic irony. New York State's judiciary, which should be the bastion of protection of this right afforded by the elected representatives of the people of this State, instead chills that right by inserting its own confidentiality clause into an unqualified statute. Their holding may be reduced to this syllogism: (1) the lower courts put confidentiality into the statute; (2) the judiciary then says that the Legislature did not take it out; and (3) the judiciary finally declares that the Legislature put it in in the first place.
The Appellate Division in this case observed that, subsequent to initial enactment, the Shield Law was judicially interpreted as guarding from disclosure material which was received only under a cloak of confidentiality. The court then reasoned that a 1981 amendment to the statute did not eliminate the judicially fashioned cloak of confidentiality since, in an earlier study bill draft, the amendment proposed a provision expressly eliminating the confidentiality requirement which was not present in the version passed into law two years later. In cases after the passage of the amendment, the Appellate Divisions still regarded the judicially created confidentiality requirement as still constituting an element to the invocation of the privilege (Oak Beach Inn Corp. v Babylon Beacon, 92 A.D.2d 102, affd 62 N.Y.2d 158; Matter of Pennzoil Co., 108 A.D.2d 666; People v Korkala, 99 A.D.2d 161; Hennigan v Buffalo Courier Express Co., 85 A.D.2d 924).
Relying on the reasoning of People v Korkala ( 99 A.D.2d 161, supra), the court below concluded that in light of the judicial construction of the Shield Law at the time of the 1981 amendment, an intention to alter that construction would not be imputed to the Legislature (id., at 166). The Appellate Division also found persuasive a memorandum by the Attorney-General, which was received by the Governor after he signed the 1981 amendment into law. In material part, the Attorney-General stated: "this version does not protect journalists from * * * contempt for failure to divulge requested information [which] * * * is not confidential" (Mem of Attorney-General, July 8, 1981, Governor's Bill Jacket, L 1981, ch 468).
The controlling rule of statutory construction is that a court should look first to the particular statutory language and be guided by its natural and most obvious meaning (see, Matter of Monarch Elec. Contr. Corp. v Roberts, 70 N.Y.2d 91, 97; Matter of Capital Newspapers v Whalen, 69 N.Y.2d 246, 251; Price v Price, 69 N.Y.2d 8, 15; Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459; Association of Contr. Plumbers v Contracting Plumbers Assn., 302 N.Y. 495, 500). "[I]f there is nothing to indicate a contrary intent, terms of general import will ordinarily be given their full significance without limitation" (Price v Price, 69 N.Y.2d 8, 15, supra; see also, Matter of Board of St. Opening, 133 N.Y. 329, 333-334). The Shield Law exempts professional journalists and newscasters from being held in "contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any news or the source of any news" (Civil Rights Law § 79-h [b] [emphasis added]). This operative clause of the Shield Law has not changed since the statute's initial enactment in 1970.
The statute unequivocally protects the media from disclosure of "any" news or news source. We have long recognized that the word "any" imports no limitation (Matter of Beach, 154 N.Y. 242, 247), that "[a]ny is an all-exclusive word" (Randall v Bailey, 288 N.Y. 280, 285), and that it "means 'all' or 'every'" (Zion v Kurtz, 50 N.Y.2d 92, 104). This construction of the plain, unqualified term "any" would also be consistent with judicial interpretations from other States of their own shield laws protecting "any" news, information or source (see, Austin v Memphis Publ. Co., 655 S.W.2d 146, 150 [Tenn]; Grand Forks Herald v District Ct., 322 N.W.2d 850, 854 [ND]; Playboy Enters. v Superior Ct., 154 Cal.App.3d 14, 22, 201 Cal.Rptr. 207; Hammarley v Superior Ct., 89 Cal.App.3d 388, 397, 153 Cal.Rptr. 608).
There is no ambiguity in the language of New York's statute. In fact, the District Attorney concedes that the statute, on its face, is unqualified and does not explicitly provide that news acquired only in confidence is protected (respondent's brief, at 11, 22). Nonetheless, he argues and the majority accepts that a confidentiality requirement is a part of the Shield Law protections because it is part of other evidentiary privileges. The argument would have the courts incorporate confidentiality by reference.
I cannot accept that premise and that argument because each of the analogized privileges is set forth in CPLR article 45, entitled "Evidence", and each contains an express confidentiality component designed to confer a privilege on the utterer. The Shield Law, on the other hand, is contained in the Civil Rights Law, indicative of a legislative intent to differentiate and to treat uniquely this statutory enhancement of the State and the Federal constitutional protections of a free press. Distinctly contrary to other privileges, the Shield Law is designed to confer its unqualified privilege on the listener, the public transmitter of the information as news.
We have also long recognized that "a particular construction of a statute should be preferred which furthers the statute's objective, spirit and purpose" (Price v Price, 69 N.Y.2d 8, 16, supra; Matter of Petterson v Daystrom Corp., 17 N.Y.2d 32, 38-39; Matter of New York Post Corp. v Leibowitz, 2 N.Y.2d 677, 685-686). The legislative history of the Shield Law as of the time of its initial enactment, and of the subsequent amendments reacting to certain judicial constructions, establishes that no qualification of confidentiality was ever legislatively adopted or ratified.
Enacted in 1970, it was described as making New York "the only State that clearly protects the public's right to know and the First Amendment rights of legitimate [professional journalists and newscasters]" (Governor's Approval Memorandum, 1970 N.Y. Legis Ann, at 508). It was specifically stated in the Approval Memorandum that the information protected included all "written, oral, and pictorial information and communications" (id.). Taken as a whole, the legislative history of this initial enactment displays a firm conviction by the Legislature and the Governor to shield journalists and newscasters from being compelled to reveal any information, material, or sources. There is nothing in the legislative history cloaking the privilege with confidentiality.
Virtually every State court case construing the Shield Law between the date of enactment and its subsequent amendments in 1975 and 1981 nevertheless added, as a judicial overlay, the requirement of confidentiality (see, Phelan, Beach v Shanley: An Expansive Interpretation of New York's "Shield Law", 49 Alb L Rev 748, 764 [1984-1985]). Yet, this is the first opportunity this court has had to address that precise issue.
The Legislature took steps in the interim to strengthen the Shield Law and to overcome, where it found it necessary, the constructions that were being applied by the courts. In 1975, the Legislature added an ingredient pertaining to Grand Juries (L 1975, ch 316, § 1). Subsequently, in 1981, three other significant changes were made. The class of protected persons was expanded to include free-lance journalists and broadcast media; information acquired in violation of the statute was made inadmissible as evidence; and the newspersons' protection was expanded to include information which was not solicited by the newspersons (L 1981, ch 468).
The legislative history which accompanied these amendments reveals that the Legislature understood the Shield Law, as originally enacted, to afford an unqualified privilege to journalists and newscasters, and that the amendments were intended to fortify the original intent (see, Mem in Support, 1975 N.Y. Legis Ann, at 38). The Memorandum in Support of the 1981 amendment explains that the purpose of the bill is to "correct loopholes and fill gaps in the existing statute", "guarantee absolute coverage for persons professionally engaged in a news gathering capacity", and "grant the journalist sole determination as to when that protection may be waived" (1981 N.Y. Legis Ann, at 257). The Memorandum noted that "[c]ase history makes it abundantly clear that the courts have been all too often disinclined to follow the letter or even the spirit of existing law" (id., at 257). The sponsor's Memorandum of Support even added in prescient terms: "in the event (entirely expected) that the courts, (irrespective of this bill's attempt to fill case-by-case, precedent-by-precedent the gaps and established loopholes of the existing statute by use of strengthened language) still arrogate to themselves the power to pierce the absolute privilege of confidentiality for journalists so intended by the Legislature, then such information forced disclosed is to be declared incompetent" (id., at 258). Evidencing a desire to champion the intended free press objectives of the statute over the grudging judicial constructions applied to it, the Memorandum in Support proclaimed that "[i]t is in the interests of society as a whole that the Legislature mandate absolutely and without qualification the protection of journalists from being compelled to produce information or reveal sources" (id., at 258). Moreover, in the Senate floor debate concerning the amendment which took place immediately prior to its overwhelming passage, the Shield Law was described as "the law that allows the press not to disclose their sources and information" and the amendment as "merely solidify[ing] the original intent of the law and correcting those areas which have been pierced by court decisions" (NY State Senate Stenographer's Record, Regular Session 1981, at 4957).
Interestingly, in the period between enactment of the 1981 amendment and this court's decision in 1984 in Matter of Beach v Shanley ( 62 N.Y.2d 241), some trial courts began themselves to pull back from the confidentiality requirement, noting that it never did encumber the plain protections afforded by the statute even in its original enactment (see, People v Iannaccone, 112 Misc.2d 1057; Lawless v Clay, 9 Media L Rep 1223 [BNA]; Wilkins v Kalla, 118 Misc.2d 34; CBA Elecs. v Ellenberg, 10 Media L Rep 1095 [BNA]). The Appellate Divisions, on the other hand, adhered to their view that the Shield Law contained a cloak of confidentiality (Hennigan v Buffalo Courier Express Co., 85 A.D.2d 924, supra; People v Korkala, 99 A.D.2d 161, supra; Matter of Knight-Ridder Broadcasting v Greenberg, 119 A.D.2d 68; Matter of Pennzoil Co., 108 A.D.2d 666, supra).
Legislative inaction, in any event, with respect to a facially plain core provision should not prevail to bring about a result contrary to the enacted legislative language (Matter of Hellerstein v Assessor of Town of Islip, 37 N.Y.2d 1, 10, 13). Additionally, this court, in its decisions in Oak Beach Inn Corp. v Babylon Beacon ( 62 N.Y.2d 158, supra) and Matter of Beach v Shanley ( 62 N.Y.2d 241, supra), provided a fresh sense of direction which should have been persuasive in deciding this case.
We quashed a subpoena in Matter of Beach v Shanley (supra) relying on the plain meaning of the Shield Law and the legislative intent behind its original enactment and subsequent amendments. We observed that "the statute precludes any body from having a reporter held in contempt, fined or imprisoned for refusing to disclose news or the identity of a source, regardless of whether the information is highly relevant to a governmental inquiry and whether the information was solicited or volunteered" (Matter of Beach v Shanley, 62 N.Y.2d 241, 251, supra). We stated that "[t]he inescapable conclusion is that the Shield Law provides a broad protection to journalists without any qualifying language" (id., at 251 [emphasis added]). The conclusion reached upon application of this rule to the facts there was that "[a]lthough this may thwart a Grand Jury investigation, the statute permits a reporter to retain his or her information, even when the act of divulging the information was itself criminal conduct" (id., at 252; see also, Matter of Stern v Morgenthau, 62 N.Y.2d 331, 335).
On the same day as Beach (supra), in Oak Beach Inn Corp. v Babylon Beacon ( 62 N.Y.2d 158, supra), we dealt with the Shield Law in a civil context. We held that "[t]he Shield Law's unqualified immunity from contempt granted to journalists who refuse to disclose their sources, would preclude a court from employing that remedy against such a journalist in a civil case, even in those rare instances where it might otherwise be considered the only appropriate or effective remedy" (Oak Beach Inn Corp. v Babylon Beacon, 62 N.Y.2d 158, 166, supra [emphasis added]).
Continued reliance by the majority and courts below on the letter of the Attorney-General in interpreting the 1981 amendment should not be controlling or even persuasive. That opinion came after Governor Carey signed the amendment into law and, thus, does not reflect information before either the Governor or the Legislature. Moreover, the materials in the Bill Jacket overwhelmingly support the view that the Shield Law does provide an unqualified privilege. The Attorney-General's letter standing alone is insufficient, even if it had been timely, to supplant the language of the statute itself. Simply put, that letter is not even part of the legislative history and is essentially irrelevant in this case for that very reason.
With respect to the majority opinion, it suffices to express a view only as to several of its fundamental flaws.
It twice asserts (at 155, 158) that the courts should not substitute their policy views for those of the Legislature. The irony of that assertion is that that is precisely what the majority is doing and what the courts have persistently done by imposing a confidentiality requirement when the Legislature has clearly not done so in the statute itself (Lane, Legislative Process and Its Judicial Renderings: A Study in Contrast, 48 U Pitt L Rev 639 ).
It violates a threshold statutory construction rule when it proceeds directly to a discussion of legislative history without addressing or even quoting the plain language of the statute (id., at 652). Their reliance on the principle and cases noting legislative acquiescence by awareness of judicial interpretations is rebuffed by our direct holding in the classic case of Matter of Hellerstein v Assessor of Town of Islip ( 37 N.Y.2d 1, 10 [per Wachtler, J.], supra) where we said: "the application of this principle [of legislative acquiescence] presupposes first, that the statute is capable of more than one interpretation, and secondly, that our court has not previously resolved the ambiguity". Neither of those two conditions is present to make the majority's major premise operative in this case.
It inexplicably gives the Attorney-General's 1981 opinion significant impact on this case. That opinion came after the bill was enacted and it comes from an official who has absolutely nothing to do with the enactment process or the interpretative process.
Finally, the majority uses bootstrapping by referring to a "well-settled rule of confidentiality" for over a decade in this State. This cannot be the same rule that has been hotly debated in the Legislature, vigorously litigated in the courts, persistently contested by the media over the past 17 years, and sharply divides this very court by a 4-3 vote. Then, these remarkable coups de grace are delivered in that respect: (1) the negative legislative intent concerning the 1981 amendments is immunized from the fact that this court at that time had never even passed on the issue and the majority adds that this court's silence is of no great weight anyway in determining what the Legislature failed to do with respect to a judicial artifact of confidentiality; and (2) most astonishing of all, the majority asserts that this court's only clear statements on the subject, when they finally did emerge in 1984 in two cases, are of no consequence and are relegated to a denigrating end-piece footnote in the majority opinion. Stare decisis and respect for our own words and for this court's rank as the ultimate interpretative policy voice seems absent here.
The Legislature of this State has made a very significant policy decision that the interests of the public would be best served by allowing newspeople to protect their materials and sources even if it impedes a criminal investigation and this court has endorsed that policy (see, 1970 N.Y. Legis Ann, at 33, 508; see also, Matter of Beach v Shanley, 62 N.Y.2d 241, 251, supra; Matter of Stern v Morgenthau, 62 N.Y.2d 331, 335, supra), up to today. The policies and the precedents are good ones and the courts should not reverse course and constrict the plain policy choice enacted by the Legislature in the statute's own words which have not been changed in the key formulation since first passage.
I believe it is unwise for the judiciary to transmogrify newspeople into agents of the government to collect evidence, and I would reverse and quash the subpoena.