No. 13254 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

THE STATE OF MONTANA on the relation of 

### FRANK ADAMS, Relator,

THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF MONTANA, inand forthe County of Powell, and the HON. ROBERT J. BOYD, Judge thereof, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relator: PhilipW. Strope argued, Helena, Montana For Respondents: James J. Masar, County Attorney, Deer Lodge, Montana Albert W. Meloling, Special Deputy County Attorney,

argued, Helena, Montana

Submitted: January 

### 23, 1976

4 ('-1' Decided:

### CFB

## 3k idrbPER CURIAM: This isan applicationby a newspaper reporter for a 

### writ of supervisory control toquash a subpoena duces tecum served upon him ina pending criminal case. Relator 

### is Frank Adams, a reporter for the Tribune, a dailynewspaper published in Great Falls, Montana. On October 21, 1975, he allegedly received a letter from L. R. Bretz, excerpts from which were quoted and attributed toBretz in a news article published in the Tribune the following day. The news articledealt with chargesby Bretz that ina number of instances hisrights had been violated in theMissoula county jailwhere he had been transferred after allegedly conspiringwith others in the stateprison tohave Attorney General Robert Woodahl killed. According tothe

news article, Bretz charged (1) denial of adequate access to law books inworking on his defense, (2) denial of his right to correspond with and be interviewed by representatives of thenews media, (3) limitations on visitationby hiswife and the conduct of business affairswith his former personal secretary, (4) a search of his cellby the sheriff's force forhis personal legal filescontaining statements he had taken from various prisoners concerning a key prosecution witness, (5) reading and photostating his mail, 

### (6)his transfer tothe Missoula County jailwithout due process of law, 

### (7) denial of medical care, 

### (8) unsanitaryjail facilities, (9) insufficient food and exercise, and (10) taking prisoners to court in jail clothing consisting of a white coverall and rubber shower shoes. On October 23, 1975, the state filed an amended Information against Bretz and Merrel J. Cline in the districtcourt of Powell County charging them with a series of crimes: (1) Conspiracy to commit deliberatehomicide. (2) Solicitation to commit deliberate homicide. 

### (3) Perjury. (4) Tampering with witnesses. (5) Fabricating physical evidence.On November 13, 1975, the state served a subpoena duces tecum

on relator Adams commanding him to produce the original letter allegedly received by him from Bretz or show cause for his failure to do so. Relator Adams appeared by motion to quash the subpoena duces tecum. Following hearing the district court of Powell County, the Hon. Robert J. Boyd, districtjudge, entered an order denying Adams' motion to quash together with a memorandum opinion. The gist of the memorandum opinion was that theBretz letterwas not protected by the statutorynewsman's privilege contained in sections 93-601-1, 93- 601-2 and 93-701-4(8), R.C.M. 1947, because neither thewriter nor the newsman intended to protect the source of the information nor maintain inconfidence the contents thereof; thenewsman waived the privilege in any event by publication of portions of the letter and disclosure of the identity of the writer; and that neither the First Amendment tothe United States Constitutionnor Article 11, Section 

### 7, 1972 Montana Constitution was applicable to the case. RelatorAdams contends that the districtcourt abused its discretion in denying his motion to quash the subpoena duces tecum. He raises three substantive issues underlying this determination: (1) Are the contents of the lettermaterial, relevant and necessary to the trial of the criminal case against Bretz and Cline? (2) 

### Is the lettera privileged communication under the First Amendment to the United States Constitution; Article 11, Section 

### 7, 1972 Nontana Constitution, or the statutorynewsman's privilege? 

### (3) Did the reporterwaive the privilege and if so, towhat extent? We areunable to determine the meritsof these issues on the record before us. No court isableto determine therelevancy, materiality, necessity or applicability$ofthe statutes or constitutional provisions of an item of evidence unless that item is first presented tothe court for examination. The applicablerule of law has been stated in this language by Professor Wigmore in his treatise

on evidence, 

### 8 Wigmore, Evidence 

### 5 2200, pp. 127-129 (McNaughton rev.viouslv nut for thl fI$< -v. -1- 

# ., it is abl e witness towithhold the documents upon his mere assertion that they arenot relevant (92210 infra) or that they areprivileged. It 

### is his duty tobring what the court requires. The court can then to its own satisfaction determine by inspection whet' her the documents ~roduced areirrelevant or ~rivile~e ..----, - - - - . -.-. - - - --- --- - This does not deprive thewitness unduly of any rights of privacy, since the court's determinatio; is made by its own inspection, without submitting the documents to the opponent's view." (Emphasis added). 'See also: 81Am Jur 2d Witnesses, 920; Ex ParteMonroe County Bank, 254 Ala. 515, 

### 49 S.2d 161, 

### 23 ALR2d 

### 856. In this case the relatorhas not produced the Bretz letter for inspection by the district court in order toenable it toproperly rule on the issueshe now raises. The application for a 

### writ of supervisory control is denied without prejudice. Relator 

### is directed to deliver the originalBretz letter to the district court of Powell County for inspection and determination of relevancy and privilege as a condition precedent to any further application for extraordinary relief from this Court.



# ............................. Mr. Justice Gene B. Daly did not participate in this case.