Marks v. Vehlow

671 P.2d 473, 105 Idaho 560, 9 Media L. Rep. (BNA) 2361, 1983 Ida. LEXIS 517

• Court: Idaho Supreme Court
• Decided: October 21, 1983
• Docket: 13938
• Status: Published

Opinions

DONALDSON, Chief Justice.

Michael Clary was awarded custody of his natural daughter Alysia Clary, a minor child, pursuant to an Arizona divorce decree issued on May 12, 1975. Following the divorce, Mr. Clary and Alysia lived in Nebraska. In the summer of 1980, while the child was visiting with her natural mother Eugenia (Clary) Gilmore, in Idaho, Mrs. Gilmore filed a motion for temporary possession of Alysia in Nebraska. The Nebraska court denied the motion and entered a modified order on September 5, 1980, which required that Eugenia Gilmore return the child to the custody of her natural father pending further investigation and evaluation. The child was not returned and on September 9, 1980, Michael Clary filed a petition for a writ of habeas corpus in the Fourth Judicial District of the State of Idaho, Ada County, seeking a writ commanding Eugenia and Randall Gilmore (her husband) to bring the child before the court. The writ was issued and served on Randall Gilmore on September 9, 1980, commanding that Alysia be brought before Magistrate Vehlow on September 10, 1980.

On September 10, 1980, Randall Gilmore appeared before Magistrate Vehlow without the child. After Gilmore was questioned under oath, the magistrate held him in contempt of court and committed him to jail. The magistrate also issued a warrant for the arrest of Eugenia Gilmore and set a hearing for September 18, 1980, at 9:00 a.m., to review the contempt of Mr. Gilmore. On September 18, 1980, a newspaper, The Idaho Statesman, published an article written by the petitioner, Ellen Marks, a reporter, which related a recent interview concerning the child between Marks and Mrs. Gilmore. Also on September 18, 1980, Marks went to the courthouse to attend the hearing on Mr. Gilmore. While waiting for the proceedings to commence, Marks was served with a subpoena by Mr. Clary’s counsel. Shortly after receiving the subpoena, Marks left the courtroom. Thereafter, Mr. Clary’s counsel moved for a bench warrant for the arrest of Marks which the magistrate indicated would issue upon written proof of service. Later Marks, by counsel, moved to have the subpoena quashed for ineffective service. The motion to quash was denied and a bench warrant was issued. A motion to quash the bench warrant was filed on September 18, 1980.

On September 19, 1980, Marks appeared before the magistrate court. Argument by counsel was made on the motion to quash the warrant and such motion was denied. Marks was called to the witness stand and refused to answer certain questions regarding the whereabouts of the child, Alysia Clary, based upon an assertion of first amendment rights. Following argument to the court, the magistrate found Marks in contempt of court and ordered her incarcerated pending compliance. The order was modified on October 7, 1980, to a fine of $500.00 for each and every day that Marks refused to answer the questions propounded on September 19, 1980. A further order of contempt was filed on October 14, 1980.

Petitioner attempted to appeal the orders of contempt to this Court which attempt was dismissed as being from nonappealable orders.

The contempt sanction continued to run against Marks until receipt by the magistrate court of a stipulation that the child had been returned to the father. A final order was filed on February 2, 1981, which terminated the sanction effective January 26,1981. Thereafter, Marks filed a petition for a writ of review in this Court. We affirm.

Where orders of contempt are examined under a writ of review¹ the prime question for determination is whether the inferior tribunal exceeded its jurisdiction. E.g., Dutton v. District Court of Third Judicial District in and for County of Owyhee, 95 Idaho 720, 518 P.2d 1182 (1974); Barnett v. Reed, 93 Idaho 319, 460 P.2d 744 (1969). Our initial inquiry must therefore focus upon whether the magistrate possessed subject matter jurisdiction power to order the contempt sanctions imposed. We will also consider whether there exists a valid newsman’s testimonial privilege which should have shielded Marks from the orders of contempt.

I.

An attorney magistrate is a judicial officer of the district court whose jurisdiction is established by legislation, I.C. §§ 1-2208,1-2210; under the Idaho Constitution, ID. Const, art. 5, § 2; by rule of the Idaho Supreme Court, I.R.C.P. 82; and by the rules of the respective district courts, e.g., 4th Judicial District Court Rule 3.0 (1979). An attorney magistrate may be empowered and clothed with jurisdiction to conduct proceedings in habeas corpus and child custody matters. I.C. § 1-2210.

A writ of habeas corpus was issued and served on Randall Gilmore commanding that Alysia Clary be brought before Magistrate Vehlow on September 10, 1980. At the September 10, 1980, proceeding the magistrate held Gilmore in contempt, ordered him committed to jail, and set a hearing for September 18,1980. It is argued by Marks that the September 18 hearing was limited to a review of the contempt of Randall Gilmore.² From this argument and the subsequent voiding of the order of contempt against Gilmore and his discharge from custody by the district court under separate habeas corpus proceedings, Marks contends that there was no jurisdiction to support the September 18 hearing. Without jurisdiction for the September 18 hearing, similarly there would be no jurisdiction for the subsequent proceedings at which Marks was held in contempt. We do not agree. From our review of the record, we conclude that the September 18 hearing was a continuing part of the initial habeas corpus proceeding.³ We conclude that the magistrate court had proper jurisdiction to conduct the September 18 hearing and the subsequent hearings in furtherance of the habeas corpus proceeding.

II.

Ellen Marks was served with a subpoena for the September 18,1980, hearing on that date. By counsel, she moved to quash the subpoena which motion was denied.⁴ Later that same day, upon written return of service, a bench warrant was issued for the arrest of Ellen Marks. A motion to quash the warrant was made, argued on September 19, and denied. Thereafter, Marks was called to the witness stand. During examination, she declined to answer questions directed to the indentities of confidential sources and the location of a confidential meeting that she had had with the undisclosed confidential sources.⁵ The questioning of Marks was aimed at obtaining information about the whereabouts of the child.

The refusal was based upon an assertion that the sources were protected by a qualified newsman’s privilege to conceal the identity of confidential sources based upon the first amendment. Magistrate Vehlow recognized no privilege and ordered Marks to answer the questions. Marks refused and Magistrate Vehlow held Marks in contempt and ordered her incarcerated until further order. Marks attempted to appeal this order to this Court on September 26, 1980, which appeal was dismissed.

Marks moved for a stay of execution and enforcement of the September 19, 1980, Order of Contempt and Warrant of Commitment which motion following a hearing on October 6, 1980, was denied on October 7, 1980. Marks was found in contempt for refusing to answer the questions propounded on September 19, 1980, and fined $500. Following an October 7 hearing, Magistrate Vehlow entered an order which modified the previous order of contempt as follows:

“IT IS HEREBY ORDERED AND THIS DOES ORDER that the Order of Contempt entered by this Court on September 19, 1980, be modified to provide that the witness, Ellen Marks, shall pay the sum of FIVE HUNDRED & NO/100THS DOLLARS ($500.00) for each and every day she continues to refuse to answer the questions earlier propounded to her at the hearing on September 19, 1980.”

On October -14, 1980, following another hearing, Magistrate Vehlow entered another order of contempt which provided:

“THIS COURT DOES ORDER AND THIS DOES ORDER That for each day that Court is in session that Ms. Marks refuses to purge herself of contempt, that sh¿ be fined five hundred dollars ($500.00). All fines accruing under this Order of Contempt are due and payable at the first of every month following the acts of contempt excepting the fines ordered on October 6 and October 7, 1980 which are due and payable on October 14, 1980.”

Petitioner Marks contends that Magistrate Vehlow had neither the power to impose the contempt sanctions utilized nor the power to modify the September 19, 1980, order of contempt from incarceration to a daily fine. We disagree. We are mindful of petitioner’s arguments for a qualified newsman’s privilege which if existing would vitiate these orders of contempt. In due course, we will consider the question of a qualified newsman’s privilege.

The attorney magistrate in conducting habeas corpus proceedings exercises the judicial power of the State of Idaho. ID. Const, art. 5, § 2; I.C. §§ 1-2208, 1-2210; I.R.C.P. 82. To vindicate his jurisdiction and proper function, the magistrate is vested with the judicial contempt power. While this power has been recognized by statute, Title 7, chapter 6, I.C., its source lies in the Constitution, ID. Const, art. 5, § 2, and the common law, McDougall v. Sheridan, 23 Idaho 191, 128 P. 954 (1913).

I.C. § 1-1603 recognizes that “[ejvery court has power: ... 4. To compel obedience to its ... orders,” I.C. § 1-1901 recognizes that “[e]very judicial officer has power: ... 2. To compel obedience to his lawful orders, as provided in this code,” I.C. § 1-1902 provides that “[f]or the effectual exercise of the powers conferred by the last section [I.C. § 1-1901], a judicial officer may punish for contempt, in the cases provided in this code,” and I.C. § 7-601 provides that “[t]he following acts or omissions in respect to a court of-justice, or proceedings therein, are contempts of the authority of the court: ... 10. Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness.” (Emphasis added.) If it is necessary to base Magistrate Vehlow’s orders of contempt on statutory authority, we believe that I.C. § 1— 1603 provides a sufficient basis. Section 1-1603 does not attempt to delimit the power recognized therein. While Title 7, chapter 6, I.C. provides statutory guidance with respect to contempts, we do not believe that it may constitutionally circumscribe the judicial power, ID. Const, art. 5, § 2, the power recognized by I.C. § 1-1603, or the inherent common law contempt power.

A recalcitrant witness may be cited for contempt. See In re Niday, 15 Idaho 559, 98 P. 845 (1908). Continued refusal to answer questions within an area results in but a single contempt of a continuing nature. Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957). To counter such contempt, civil as well as criminal contempt sanctions may be imposed;⁶ however, the imposition of multiple criminal sanctions is impermissible. Id.

Marks was adamant regarding her refusal to answer the questions first propounded on September 19, 1980, which resulted in but a single contempt of a continuing nature. Magistrate Vehlow first imposed a civil sanction when she ordered Marks incarcerated until she purged herself of the contempt. I.C. §§ 7-603, 7-611. At this point, we find no error in this initial ruling.

Appellant argues that the magistrate’s modification of the order of contempt was made without authority and therefore was void. Appellant contends that the September 19 order of contempt was appealed to the Supreme Court which appeal divested the magistrate of any authority to modify the order. See I.A.R. 13(b). However, there is no appeal as of right from a contempt order.⁷ See I.C. § 7-614; I.A.R. 11. Because this was an attempt to appeal from a nonappealable order, the jurisdiction of the magistrate was not divested under I.A.R. 13(b). See Phillips v. Phillips, 41 Cal.2d 869, 264 P.2d 926 (1954); Wilmurth v. First Judicial District Court, 80 Nev. 337, 393 P.2d 302 (1964); see also 4A C.J.S. Appeal & Error § 606, at 394-95 (1957).

I.C. § 7-611 addresses a permissible civil sanction — incarceration until compliance — for a contempt which consists of an omission. We believe it noteworthy that § 7-611 is phrased in permissive language — the contemnor “may be imprisoned.” We hold that § 7-611 does not preclude alternative civil sanctions under the common law or I.C. § 1-1603. In such instances, the coercive force may be implemented by means of prospective conditional fines. United States v. Professional Air Traffic Controllers Organization, 678 F.2d 1 (1st Cir.1982); G. & C. Merriam Co. v. Webster Dictionary Co., Inc., 639 F.2d 29 (1st Cir.1980); Papa v. New Haven Federation of Teachers, 186 Conn. 725, 444 A.2d 196 (1982); Board of Education of City of Shelton v. Shelton Education Association, 173 Conn. 81, 376 A.2d 1080 (1977); Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969); see Hutto v. Finney, 437 U.S. 678, 690-91, 98 S.Ct. 2565, 2573, 57 L.Ed.2d 522 (1978); United States v. United Mine Workers, 330 U.S. 258, 305, 67 S.Ct. 677, 702, 91 L.Ed. 884 (1947); Yamaha Motor Corporation, U.S.A. v. Harris, 29 Wash. App. 859, 631 P.2d 423 (1981). A thorough review of the record reveals that Magistrate Vehlow’s subsequent modification of the contempt order to impose a daily $500.00 fine for each day that Marks continued to refuse to answer the questions of September 19, 1980, was to coerce her testimony. This modification did not result in multiple criminal sanctions, but rather constituted a continuing coercive force terminable by compliance of the contemnor — the answering of the questions.⁸

The exercise of the broad power to impose civil sanctions which we recognize today is not without limitation. See Yamaha Motor Corporation, U.S.A. v. Harris, 29 Wash.App. 859, 631 P.2d 423, 428 (1981) (“The coercive sanctions imposed for contempt lay within the sound discretion of the trial court, and its action will not be disturbed absent a clear showing of abuse”); cf. Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966) (“a court must exercise ‘[t]he least possible power adequate to the end proposed’ ”); United States v. United Mine Workers, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947) (“where the purpose is to make the defendant comply, the court’s discretion is otherwise exercised. It must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.” (Footnote omitted.)). The sanctions imposed will be subject to appellate review under an abuse of discretion standard. Here,- we find no abuse of that discretion.

In reaching this conclusion, we had to consider the issue of a qualified newsman’s privilege. While numerous cases have considered the newsman’s privilege issue, e.g., Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981); Carey v. Hume, 492 F.2d 631 (D.C.Cir.1974) cert. denied, 417 U.S. 938, 94 S.Ct. 2654, 41 L.Ed.2d 661 (1974); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir.1980); United States v. Burke, 700 F.2d 70 (2d Cir.1983); In re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir.1982), cert. denied sub nom. Arizona v. McGrawHill, Inc.,-U.S.-, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982); Baker v. F & F Investment, 470 F.2d 778 (2d Cir.1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973); Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958); Riley v. City of Chester, 612 F.2d 708 (3d Cir.1979); United States v. Steelhammer, 539 F.2d 373 (4th Cir.1976) (vacated judgment of contempt), on reh’g, 561 F.2d 539 (1977) (affirmed judgment of contempt); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981); Silkwood v. Kerr-McGee Corporation, 563 F.2d 433 (10th Cir.1977); Pankratz v. District Court In and For City and County of Denver, 199 Colo. 411, 609 P.2d 1101 (1980); Commonwealth v. Corsetti, 387 Mass. 1, 438 N.E.2d 805 (1982); Matter of Roche, 381 Mass. 624, 411 N.E.2d 466 (1980); Newburn v. Howard Hughes Medical Institute, 95 Nev. 368, 594 P.2d 1146 (1979); Matter of Farber, 78 N.J. 259, 394 A.2d 330 cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978); Clampitt v. Thurston County, 98 Wash.2d 638, 658 P.2d 641 (1983); Senear v. Daily Journal-American, 97 Wash.2d 148, 641 P.2d 1180 (1982), we have been unable to find any reported cases which have considered the particular question before us. The question is whether there is in Idaho a qualified newsman’s privilege which a journalist may assert while a witness in a habeas corpus proceeding.

Notwithstanding our basic agreement with the following quotation from Zerilli v. Smith, 656 F.2d 705, 711 (D.C.Cir.1981) (consolidated cases involving leaks of governmental transcripts to newspapers):

“Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices.... [T]he press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with his news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant.” (Footnotes omitted.)

We believe that here the compelling state interests — the sanctity of the writ of habeas corpus and the safety of the child — outweigh any public interest in an unfettered press.

We view this case as presenting a unique set of circumstances — a habeas corpus proceeding in which a journalist is a witness. Because we find a compelling and legitimate governmental interest in assuring the efficacy of the writ of habeas corpus, we hold that here there is no qualified newsman s privilege beyond the usual inquiry concerning relevance and materiality of the information sought.⁹ Furthermore, we believe that the obligation to attend and to give testimony in a habeas corpus proceeding wherein liberty interests are determined is at least as compelling as the duty to appear before a grand jury, Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); cf. Matter of Farber, 78 N.J. 259, 394 A.2d 330, 334 (obligation to appear on behalf of a criminal defendant as compelling as duty to appear before a grand jury), cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978). The concealing of information or the identities of informants which could lead to the discovery of a person sought by means of habeas corpus proceedings should be discouraged. We therefore decline to establish a specific newsman’s privilege with respect to such information.

Here, a child was sought by means of a writ of habeas corpus.¹⁰ While possible infringement of a journalist’s news gathering right may occur by requiring disclosure, the disclosure is essential to assure the continued vitality of habeas corpus proceedings which in turn provide protection against unjustified intrusions upon our individual liberty.

Marks by her responses on the witness stand clearly revealed that she possessed relevant information. She testified that she had been at a recent meeting at which the child sought by the habeas corpus proceedings was present. Therefore, the location of the meeting and the identities of those present was obviously material and relevant.

Argument was made that the information had become stale with the passage of time. While this may be true, we will not disturb the orders of contempt because the proper benchmark for determining the relevance of the information is at the onset and such determination need not be repeated.

We affirm.

No costs allowed.

No attorney fees allowed.

BAKES and HUNTLEY, JJ., concur.

1 .The review is limited by statute. I.C. § 7-208. Section 7-208 provides:

“The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board or officer has regularly pursued the authority of such tribunal, board or officer.”

2 . The magistrate in her “Memorandum Opinion, Order for Contempt and Order for Warrant of Arrest (H.C. 1643)” ordered:

“A hearing to review the status of respondent Randall Gilmore’s contempt is set for Thursday, September 18, 1980 at 9:00 A.M.”

3 . The order for the appearance of Randall Gilmore at the September 18 hearing before Magistrate Vehlow recited that

“Randall Gilmore ... be brought before this Court on the 18th day of September 1980, at the hour of 9:00 a.m. for a review of a Habeas Corpus Petition (Emphasis added.)

The character of the September 18 hearing is further reflected in its transcript by the following:

“THE COURT: ... Mr. Gilmore, this hearing was set up to basically review the habeas corpus petition that we went through ... sometime last week, and find out what information you might have at this point on the location of the child, Alysia, or whether in fact of course you know where the child is.”

4 . Marks contends that she was denied procedural due process under the fourteenth amendment of the United States Constitution and article 1, section 13 of the Idaho Constitution. She argues that she was denied adequate notice of the September 18 hearing and an opportunity for a full and fair hearing during which she could have provided a defense to the effort to compel her testimony. In the circumstances of this case, we believe that Marks was not denied her procedural due process rights. She had counsel who was able to make and be heard on several motions before Marks was required to take the witness stand.

5 . The September 19, 1980, Memorandum Opinion, Order of Contempt and Warrant of Commitment recited that:

“The questions which Ellen Marks refused to answer claiming the above [first amendment] privilege are the following:

“1) From whom did you first receive your information concerning Mrs. Gilmore?

“2) Was the individual a male or a female? “3) Where did the meeting take place?

“4) Was that the residence of this person?

“5) Was Mrs. Gilmore present at the meeting?

“6) Where did the meeting take place?

“7) Was it indicated to you in the course of any of your conversations that evening whether Mrs. Gilmore and the children were residing in that residence at that time?

“8) Again, I would like to know the identities of the four adults who were present at the meeting?

“9) The person with whom you had the first telephone conversation, when did the conversation take place? Yesterday. Who placed that call? I did. Who was the person you called?

“10) You said you had two conversations with another person. On what days did those take place? Yesterday. Who placed those calls? I placed the first one, the other person placed the second. Who is the person you called? What is the telephone number of the other individual you called that we just discussed?

“11) How about the other person? The one you called one time yesterday. Is that the same person with whom you first spoke about Mrs. Gilmore? Yes. Did you attempt to obtain a release from your confidentiality agreement in you [sic] conversation with that person? Yes. Did or did not that person agree to release you from that promise? That person did. But that person does not object to your supplying his or her name. Is that correct? That’s true. What is the name of that person?

“12) Is the house where the meeting took place in Garden City?” (Emphasis added.)

In light of our adopted rationale, we need not be concerned with whether Marks waived the privilege by answers made during examination which may reflect that a privilege if once viable was no longer extant.

6 . Criminal sanctions are penal in nature, while civil sanctions are remedial, compensatory or coercive in nature. See Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911).

7 . While this Court has plenary power, ID. Const, art. 5, § 9, to review a contempt case, Lester v. Lester, 99 Idaho 250, 580 P.2d 853 (1978), and contempt orders, Parker v. Parker, 97 Idaho 209, 541 P.2d 1177 (1975); Jones v. Jones, 91 Idaho 578, 428 P.2d 497 (1967) (Taylor, C.J., concurring specially), we believe that in the usual case such as this that a writ of review remains the proper method of securing review of a contempt order, e.g., Glenn Dale Ranches, Inc. v. Shaub, 95 Idaho 853, 522 P.2d 61 (1974); Barnett v. Reed, 93 Idaho 319, 460 P.2d 744 (1969).

8 . Cf. Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (“When the petitioners carry ‘the keys of their prison in their own pockets,’ the action ‘is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.’ ” (Citations omitted.)).

9 . Relevancy and materiality are to be determined by the trial court. Cf. Caldero v. Tribune Publishing Co., 98 Idaho 288, 305, 562 P.2d 791, 808 (1977) (Donaldson, J., dissenting) (“issue must be resolved on a case-by-case basis”), cert. denied, 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291 (1977). The determination is vested in the trial court’s discretion. Absent an abuse of that discretion, we will not disturb its determination. We note our continuing approval of the following language from Sierra Life Insurance Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 801, 623 P.2d 103, 109 (1980) (libel case; disclosure not required as no demonstration of relevance made):

“We recognize that the news media rely upon confidential sources in the preparation of many stories, particularly those involving government or large organizations. The ability to keep the identity of those sources confidential is not infrequently a prerequisite to obtaining information. This interest, while legitimate, is not so paramount that the legitimate discovery needs of a libel plaintiff must bow before it. But by the same token a trial court can be expected to exercise caution when it orders these sources to be revealed.

As the Supreme Court of the United States has suggested, the first question to be answered is whether the identity of the sources is relevant. In Caldero, the very crux of the case was whether or not the ‘police expert’ actually existed, and whether or not he said that which the newspaper published. Relevance was there established beyond quibble.” See also Riley v. City of Chester, 612 F.2d 708, 718 (3d Cir.1979) (“trial courts should be cautious to avoid an unnecessary confrontation between the courts and the press”).

We discern no due process requirement that the journalist be accorded a separate hearing or proceeding at which to determine relevancy and materiality.

10 . The constitutional due process rights of the child are implicated by consideration of a newsman’s privilege. To accord the child sought in the habeas corpus proceedings its due process rights, ID. Const, art. 1, § 13, it is necessary for the interest of the journalist in concealing her confidential sources and information to yield when the testimony sought is material and relevant. The journalist’s interest is subordinate to the interest of the child.