No. 13254 

IN THE 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, in and 

for the County of Powell, and the HON. 

ROBERT J. BOYD, Judge thereof, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record : 

For Relator: 

Philip W. 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 3 k idrb 
PER CURIAM: 

This is an application by a newspaper reporter for a 

writ of supervisory control to quash a subpoena duces tecum served 

upon him in a pending criminal case. 

Relator is Frank Adams, a reporter for the Tribune, a 

daily newspaper 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 to Bretz in a news article 

published in the Tribune the following day. The news article dealt 

with charges by Bretz that in a number of instances his rights had 

been violated in the Missoula county jail where he had been transferred after allegedly conspiring with others in the state prison 

to have Attorney General Robert Woodahl killed. According to the 

news article, Bretz charged (1) denial of adequate access to law 

books in working on his defense, (2) denial of his right to correspond with and be interviewed by representatives of the news media, 

(3) limitations on visitation by his wife and the conduct of business 

affairs with his former personal secretary, (4) a search of his 

cell by the sheriff's force for his personal legal files containing 

statements he had taken from various prisoners concerning a key 

prosecution witness, (5) reading and photostating his mail, (6) his 

transfer to the Missoula County jail without due process of law, 

(7) denial of medical care, (8) unsanitary jail 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 district court of Powell 

County charging them with a series of crimes: (1) Conspiracy to 

commit deliberate homicide. (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, district judge, entered an order denying Adams' 

motion to quash together with a memorandum opinion. The gist of the 

memorandum opinion was that the Bretz letter was not protected by the 

statutory newsman's privilege contained in sections 93-601-1, 93- 

601-2 and 93-701-4(8), R.C.M. 1947, because neither the writer nor 

the newsman intended to protect the source of the information nor 

maintain in confidence the contents thereof; the newsman 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 to the United States Constitution nor Article 11, Section 

7, 1972 Montana Constitution was applicable to the case. 

Relator Adams contends that the district court 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 letter material, relevant and necessary 

to the trial of the criminal case against Bretz and Cline? (2) Is 

the letter a privileged communication under the First Amendment 

to the United States Constitution; Article 11, Section 7, 1972 

Nontana Constitution, or the statutory newsman's privilege? (3) 

Did the reporter waive the privilege and if so, to what extent? 

We are unable to determine the merits of these issues on 

the record before us. No court is able to determine the relevancy, 

materiality, necessity or applicability $of the statutes or constitutional provisions of an item of evidence unless that item is first 

presented to the court for examination. The applicable rule 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 f I $< -v. 

., -1- it is abl e witness to withhold 

the documents upon his mere assertion that they are not 

relevant (92210 infra) or that they are privileged. It 

is his duty to bring what the court requires. The court 

can then to its own satisfaction determine by inspection 

whet' ..----, her the documents ~roduced are irrelevant - - - - . -. -. - or - - ~rivile~e - - - - - - - 

This does not deprive the witness 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: 81 Am Jur 2d Witnesses, 920; Ex Parte Monroe County Bank, 

254 Ala. 515, 49 S.2d 161, 23 ALR2d 856. 

In this case the relator has not produced the Bretz letter 

for inspection by the district court in order to enable it to properly 

rule on the issues he now raises. 

The application for a writ of supervisory control is denied 

without prejudice. Relator is directed to deliver the original Bretz 

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.