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New Mexico

Reporters Privilege Compendium

William S. Dixon (deceased)
Charles K. Purcell
Rodey, Dickason, Sloan, Akin & Robb, P.A.
P.O. Box 1888
Albuquerque, N.M. 87103
505-768-7217

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I. Introduction: History & Background

New Mexico has had a reporter’s privilege on the books since 1967. In 1973, following the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the statute was lengthened and strengthened. But in 1976, the New Mexico Supreme Court held the statute unconstitutional to the extent that it purported to regulate matters of procedure in the state courts by creating a rule of evidence.

The separation-of-powers problem was solved in 1982, when the state supreme court promulgated its own rule of evidence embodying a reporter’s privilege. Rule 11-514 endows journalists with a privilege to refuse to disclose “confidential sources” and “confidential information.” The privilege may yield, however, to a showing that “the confidential information or source is crucial to the case of the party seeking disclosure,” that the requesting party’s interest in disclosure “clearly outweighs the public interest” in continued confidentiality, and that the requesting party “has reasonably exhausted alternative means of discovering” the information. The rule also specifies the manner in which courts will adjudicate assertions of privilege. Meanwhile, the 1973 statute presumably continues to define the scope of the reporter’s privilege, and the procedure for enforcing it, in legislative and administrative proceedings.

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II. Authority for and source of the right

A. Shield law statute

The New Mexico legislature first enacted a reporter’s privilege in 1967. See Act of Mar. 28, 1967, ch. 168, 1967 N.M. Laws 978. The original statute took the form of a declaration of “the public policy of New Mexico.” Id. § 1(A), 1967 N.M. Laws at 978. It created a privilege limited to “source[s] of information.” Id. It made the privilege subject to an exception for disclosures “essential to prevent injustice,” and it instructed courts to “have due regard” for “the nature of the proceeding, the merits of the claim or defense, the adequacy of the remedy otherwise available, the relevancy of the source, and the possibility of establishing by other means that which the source is offered as tending to prove.” Id. It provided that “[a]n order compelling disclosure shall be appealable, and subject to stay.” Id.

In 1973, the legislature repealed the original statute and replaced it with a more elaborate enactment. See Act of Mar. 10, 1973, ch. 31, 1973 N.M. Laws 137. The new and improved statute offered explicit protection from disclosure, instead of merely articulating the state’s “public policy.” It continued to make the privilege subject to suspension when disclosure was “essential to prevent injustice,” but it deleted the laundry list of factors for which the previous statute had directed courts to have “due regard.” And it extended the protection beyond sources of information to the information itself, provided that the information was “unpublished.” The 1973 statute also itemized additional media and additional categories of media representatives who could avail themselves of the privilege. Finally, the new statute required district courts ordering disclosure to “stat[e] the reasons why”; it provided for an “extraordinary” appeal to the supreme court, which would be “heard de novo and within twenty days from date of docketing”; and it made a stay of disclosure automatic upon the taking of an appeal.

Three years later, in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), the New Mexico Supreme Court held the statute unconstitutional to the extent that it purported to create “a testimonial privile[]ge in a judicial proceeding.” Id. at 310, 551 P.2d at 1357; see id. at 312, 551 P.2d at 1359. “[U]nder our Constitution,” the court explained, “the Legislature lacks power to prescribe by statute rules of evidence and procedure, this constitutional power is vested exclusively in this court, and statutes purporting to regulate practice and procedure in the courts cannot be binding.” Id. But the court left open the possibility that the statutory privilege might “properly be asserted in a[] proceeding or investigation before, or by[,] a[] legislative, executive or administrative body or person.” Id.

The statute remains on the books today as NMSA 1978, § 38-6-7 (1973). Given the supreme court’s decision in Ammerman, as well as its promulgation of a rule of evidence designed to codify the reporter’s privilege in a constitutional manner, see infra pt. II(D), the statute’s current significance is largely historical. But the statute presumably retains most of its effectiveness when a journalist faces a request to divulge confidential sources or information “in a[] proceeding or investigation before, or by[,] a[] legislative, executive or administrative body or person.” Ammerman, 89 N.M. at 312, 551 P.2d at 1359. In such situations, the only portion of the statute invalidated by Ammerman is the subsection providing that the supreme court will hear an appeal from an order of disclosure “de novo and within twenty days from date of docketing.” NMSA 1978, § 38-6-7(C) (1973); see Ammerman, 89 N.M. at 312-13, 551 P.2d at 1359-60.

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B. State constitutional provision

The New Mexico Constitution does not expressly set forth a reporter’s privilege. On the other hand, New Mexico courts have ruled in other contexts that article II, § 17 of the state constitution – which provides that “[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right,” and that “no law shall be passed to restrain or abridge the liberty of speech or of the press” – is more protective of speech than is the First Amendment to the federal Constitution. City of Farmington v. Fawcett, 114 N.M. 537, 546-47, 843 P.2d 839, 848-49 (Ct. App.), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992).

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C. Federal constitutional provision

On remand from the New Mexico Supreme Court's invalidation of the statutory reporter’s privilege in judicial proceedings, see Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), the New Mexico Court of Appeals declared that “[t]he First Amendment does not grant a broadcaster any privilege, qualified or absolute, to refuse to reveal confidential information which is admittedly relevant to a court proceeding.” Ammerman v. Hubbard Broadcasting, Inc., 91 N.M. 250, 257, 572 P.2d 1258, 1265 (Ct. App.), cert. denied, 91 N.M. 249, 572 P.2d 1257 (1977), cert. denied, 436 U.S. 906 (1978). A subsequent supreme court decision concerning the discoverability of information relevant to the issue of “actual malice” was to the same effect. See Marchiondo v. Brown, 98 N.M. 394, 398-99, 649 P.2d 462, 466-67 (1982). Five months after its decision in Marchiondo, the supreme court crafted a rule of evidence creating a qualified reporter’s privilege. See infra pt. II(D).

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D. Other sources

Having declined to find a First Amendment basis for a reporter’s privilege and having rejected the legislature’s attempt to mandate the recognition of such a privilege in judicial proceedings, the New Mexico Supreme Court promulgated Rule 11-514 of the Rules of Evidence in 1982. The rule – which remains in place today, essentially in its original form – affords journalists “a privilege to refuse to disclose . . . confidential source[s] . . . and . . . confidential information,” unless the proponent of disclosure shows by a preponderance of the evidence that the information or the identity of the source “is crucial to [her] case,” that her need for the information “clearly outweighs the public interest in protecting the news media's confidential information and sources,” and that she “has reasonably exhausted alternative means of discovering” the information. Rule 11-514(B) to (C) NMRA.

Another supreme court rule – this one authorizing “[t]he broadcasting, televising, photographing, and recording of court proceedings” under specified circumstances, Rule 23-107 NMRA – appears to create an absolute, rather than a qualified, privilege with respect to the fruits of such activities. It provides that “[n]one of the film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding shall be admissible as evidence in the proceeding out of which it arose, any proceeding subsequent or collateral thereto, or upon any retrial or appeal of such proceeding.” Rule 23-107(H) NMRA.

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III. Scope of protection

A. Generally

The principal source of a New Mexico reporter’s privilege – Rule 11-514 – provides reasonably strong protection against judicially compelled disclosure of confidential sources and confidential information. But the protection vanishes whenever a litigant can persuade the court that the source or the information is “crucial” to his case, that he has “reasonably exhausted alternative means of discovering” the information, and that his need for the information “clearly outweighs” the public interest in enforcing the privilege.

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B. Absolute or qualified privilege

The privilege embodied by Rule 11-514 is qualified in several ways. First, a radio station cannot take advantage of it unless the station “maintains and keeps open for inspection by a person affected by the broadcast, for a period of at least ... 180 ... days from the date of an actual broadcast, an exact recording, transcription, or certified written transcript of the actual broadcast.” Likewise, a television station seeking to qualify for the privilege must maintain for a full year – and must make available for inspection by any affected person during that time – “an exact recording or written transcript of the actual telecast.” Rule 11-514(B) NMRA.

More generally, “[t]here is no privilege under th[e] rule in any action in which the party seeking the evidence shows by a preponderance of evidence, including all reasonable inferences,” that

"(1) a reasonable probability exists that a news media person has confidential information or sources that are material and relevant to the action;

(2) the party seeking disclosure has reasonably exhausted alternative means of discovering the confidential information or sources sought to be disclosed;

(3) the confidential information or source is crucial to the case of the party seeking disclosure; and

(4) the need of the party seeking the confidential source or information is of such importance that it clearly outweighs the public interest in protecting the news media’s confidential information and sources."

Rule 11-514(C) NMRA.

As for the statutory privilege that apparently continues to govern nonjudicial proceedings, see supra pt. II(A), it gives way whenever “disclosure is essential to prevent injustice.” NMSA 1978, § 38-6-7(A), (C) (1973). In only one limited circumstance – requests for “film, videotape, still photographs or audio reproductions developed during or by virtue of coverage of a judicial proceeding” – do the media appear to enjoy an absolute privilege against disclosure, or at least against admission of the materials into evidence. See Rule 23-107(H) NMRA.

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C. Type of case

1. Civil

Rule 11-514 does not distinguish between civil and criminal proceedings.

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2. Criminal

Rule 11-514 does not distinguish between civil and criminal proceedings.

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3. Grand jury

Rule 11-514 does not distinguish between grand-jury proceedings and other criminal proceedings.

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D. Information and/or identity of source

The privilege codified in Rule 11-514 protects “a confidential source who provided information to [a] person in the course of [the person’s pursuit of] professional news activities,” and the rule defines a “confidential source” as someone whose “identity … is disclosed privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication.” Rule 11-514(A)(1), (B)(1) NMRA.  The privilege also protects “any confidential information obtained in the course of pursuing professional news activities.” Rule 11-514(B)(2) NMRA. (Confidential information that a journalist obtains or sources that he consults while “participat[ing] in any act of criminal conduct” are not protected. Rule 11-514(A)(3) NMRA.) Rule 23-107(H) specifically protects “film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding."

The statutory privilege applicable to nonjudicial proceedings protects “(1) the source of any published or unpublished information obtained in the gathering, receiving or processing of information for any medium of communication to the public; or (2) any unpublished information obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public.” NMSA 1978, § 38-6-7(A) (1973).

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E. Confidential and/or nonconfidential information

Rule 11-514 protects only “confidential” information, defined as information “communicated privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication.” Rule 11-514(A)(2), (B)(2) NMRA. Rule 23-107(H) protects all “film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding.” The statutory privilege applicable to nonjudicial proceedings protects only “unpublished” information, defined as “information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated, and includ[ing] but ... not limited to, all notes, news copy, outtakes, photographs, films, recording tapes or other data of whatever sort not disseminated to the public through a medium of communication.” NMSA 1978, § 38-6-7(A)(2), (B)(5) (1973).

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F. Published and/or non-published material

The statute protects only “unpublished” material. The rule of evidence protects only “confidential” information, which is apparently either the same thing as “unpublished” material or else a subset of it. Only Rule 23-107(H) seems to extend to images and sound recordings that are actually broadcast. See supra pt. III(E); infra pt. III(G).

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G. Reporter's personal observations

The 1973 statute – today applicable only to nonjudicial proceedings – protects all “data of whatever sort not disseminated to the public through a medium of communication.” NMSA 1978, § 38-6-7(A)(2), (B)(5) (1973). This category of information would appear to include anything that the reporter observes but does not report. The point is less clear under the rule of evidence. That rule protects “confidential information,” but its definitions speak only of confidential “communication[s],” which are communications “not intended for further disclosure except to other persons in furtherance of the purpose of the communication.” Rule 11-514(A)(2), (B)(2) NMRA. The language was evidently borrowed from the rule on attorney-client privilege, see Rule 11-503(A)(4) NMRA, which courts outside New Mexico have sometimes refused to apply to a lawyer’s observations about her client’s physical characteristics. Indeed, by limiting the privilege’s protections to communications “not intended for further disclosure,” the rule raises potentially vexing questions about whose intent is determinative and how such intent can be proved.

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H. Media as a party

Neither Rule 11-514 nor the statutory privilege applicable to nonjudicial proceedings explicitly differentiates between cases to which the media are parties and those to which they are not.

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I. Defamation actions

Rule 11-514 does not explicitly address the privilege’s operation in libel cases. Cases predating the rule suggest that confidential sources and confidential information may well be deemed “crucial” to particular libel claims and undiscoverable from other sources. Rule 11-514(C)(3) NMRA; see, e.g., Marchiondo v. Brown, 98 N.M. 394, 399, 649 P.2d 462, 467 (1982) (“[S]ummary judgment for the [media] defendants was premature, in that it was rendered before the thoughts, editorial processes and other information in the exclusive control of the alleged defamer could be examined.”); Ammerman v. Hubbard Broadcasting, Inc., 91 N.M. 250, 258, 572 P.2d 1258, 1266 (Ct. App.) (court erred in ruling for libel defendant before permitting discovery concerning confidential sources, because “plaintiffs produced substantial evidence that there were strong reasons to doubt the veracity of the defense informants”), cert. denied, 91 N.M. 249, 572 P.2d 1257 (1977), cert. denied, 436 U.S. 906 (1978). But cf. Coronado Credit Union v. KOAT Television, Inc., 99 N.M. 233, 238-39 & n.2, 656 P.2d 896, 901-02 & n.2 (Ct. App. 1982) (libel defendant cannot simultaneously deny “actual malice” and refuse to identify confidential sources “[i]n the absence of a showing of privilege”).

In any event, a claim of privilege generally is not a proper subject of comment by the court or counsel, and “[n]o inference may be drawn” a privilege claim. Rule 11-513(A) NMRA. “Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to a jury instruction that no inference may be drawn from the claim of privilege.” Rule 11-513(C) NMRA.

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IV. Who is covered

Both Rule 11-514 and the statutory privilege applicable to nonjudicial proceedings undertake to define the terms of the privilege in considerable detail. As a practical matter, however, these definitions are expansive enough to cover virtually any journalist or media organization.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

Rule 11-514 confers the privilege on any “person engaged or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing, or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited, or disseminated.” Rule 11-514(B) NMRA. The privilege survives termination of the journalist’s employment. See Rule 11-514(A)(4) NMRA. The statutory privilege applicable to nonjudicial proceedings protects any “journalist or newscaster, or working associates of a journalist or newscaster,” NMSA 1978, § 38-6-7(A) (1973); it defines “journalists” and “newscasters” as “person[s] who, for gain [are, or at the relevant time were,] engaged in gathering, preparing, editing, analyzing, commenting on or broadcasting news,” and it defines “working associates” as persons who are (and at the relevant time were) employees or co-workers of such journalists and newscasters, id. § 38-6-7(B)(7) to (9).

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b. Editor

Persons engaged in editing the news are protected. See supra pt. IV(A)(1)(a).

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c. News

The privilege does not turn on specialized definitions of, or value judgments about, what constitutes “news.” Rule 11-514 confers the privilege on persons employed by news media to gather, procure, transmit, compile, edit, or disseminate “news,” which the rule broadly defines to include “any written, oral, or pictorial information.” Rule 11-514(A)(4), (B) NMRA. (But the privilege protects only confidential information that the journalist obtains and confidential sources that she consults “in the course of pursuing professional news activities,” which “does not include any situation in which a news media person participates in any act of criminal conduct.” Rule 11-514(A)(3), (B) NMRA.) The statutory privilege applicable to nonjudicial proceedings protects unpublished information “obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public,” as well as the sources of such information. NMSA 1978, § 38-6-7(A) (1973).

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d. Photo journalist

Neither the rule of evidence nor the statute mentions “photo journalists,” but both are sufficiently broad and general to include them within the class of privilege-holders. See supra pt. IV(A)(1)(a).

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e. News organization/medium

Rule 11-514 confers the privilege on persons engaged by “news media,” which it defines as “newspapers, magazines, press associations, news agencies, wire services, radio, television, or other similar printed, photographic, mechanical, or electronic means of disseminating news to the general public.” Rule 11-514(A)(5), (B) NMRA.

The statutory privilege applicable to nonjudicial proceedings is somewhat more dated and less flexible. It extends to persons who work on behalf of “a newspaper, magazine, news agency, news or feature syndicate, press association or wire service,” or a “broadcast or television station or network, or cable television system.” NMSA 1978, § 38-6-7(A), (B)(2), (7) to (8) (1973).

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2. Others, including non-traditional news gatherers

Rule 11-514 reserves the privilege to persons involved in “gathering, procuring, transmitting, compiling, editing, or disseminating news,” as well as their employers. Rule 11-514(B) NMRA. The statutory privilege applicable to nonjudicial proceedings extends to “working associates of a journalist or newscaster” – persons “who work[] for,” or who are “employed by the same individual or entity” as, the journalist or newscaster. NMSA 1978, § 38-6-7(A), (B)(9) (1973).

 

Neither the rule nor the statute self-evidently protects bloggers or other persons not associated with mainstream media; the rule, for example, defines “news media” as “newspapers, magazines, press associations, news agencies, wire services, radio, television, or other similar . . . means of disseminating news to the general public.”  Rule 11-514(A)(5) NMRA.

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B. Whose privilege is it?

Under both the rule of evidence and the statutory privilege applicable to nonjudicial proceedings, the privilege belongs to the reporter and her employer, but not to the source. See Rule 11-514(B) NMRA; NMSA 1978, § 38-6-7(A), (B)(7) to (9) (1973); compare id. § 38-6-7(B)(7) to (8) (“journalists” and “newscasters” mean “persons”) with id. § 12-2A-3(E) (1997) (“person” includes “any legal or commercial entity”).

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V. Procedures for issuing and contesting subpoenas

For the most part, neither Rule 11-514 nor the statutory privilege applicable to nonjudicial proceedings imposes any special procedural requirements on those who would subpoena – or resist subpoenas for – confidential information or the identities of confidential sources. Accordingly, much of the following discussion concerns the general New Mexico law relating to judicial subpoenas. Subpoenas issued by legislative, administrative, and executive bodies are beyond the scope of this outline, except to the extent that the statutory reporter’s privilege applicable to nonjudicial proceedings specifically addresses them.

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A. What subpoena server must do

1. Service of subpoena, time

A subpoena is subject to being quashed or modified if it “fails to allow reasonable time for compliance.” Rule 1-045(C)(3)(a)(i) NMRA (civil cases); Rule 5-511(C)(3)(a)(i) NMRA (criminal cases); see, e.g., Attorney Gen. v. Montoya, 1998-NMCA-149, ¶¶ 7-9, 126 N.M. 273, 968 P.2d 784 (holding that district court did not err in refusing to enforce subpoena issued to attorney one day before trial), cert. denied, 126 N.M. 532, 972 P.2d 351 (1998).  And a subpoena that purports to require compliance less than 14 days after the date of service in a civil case is presumptively invalid; indeed, the recipient of a civil subpoena is not permitted to comply with it in fewer than 14 days unless a court orders otherwise.  See Rule 1-045(C)(2)(a)(ii) NMRA.

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2. Deposit of security

There is no such requirement under New Mexico law. But every subpoena must be accompanied by “the full fee for one day’s expenses provided by Subsection A of Section 10-8-4 NMSA 1978 as per diem for nonsalaried public officers attending a board or committee meeting and the mileage provided by Subsection D of Section 10-8-4 NMSA 1978,” unless it is issued “on behalf of the state or an officer or agency thereof,” Rule 1-045(B)(2)(b) NMRA, “including the public defender department,” Rule 5-511(B)(2)(b) NMRA. Thus, the witness must be paid a $95 per diem, plus “the [IRS] standard mileage rate set January 1 of the previous year.” NMSA 1978, § 10-8-4(A), (D) (2009). A private litigant's “failure to tender required expense and mileage fees shall invalidate the subpoena and justify non-compliance with the subpoena’s command.” Rule 1-045 committee cmt. 5 NMRA.

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3. Filing of affidavit

There is no such requirement under New Mexico law.

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4. Judicial approval

Subpoenas can be served on anyone, including journalists, without prior judicial approval.

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5. Service of police or other administrative subpoenas

Various administrative agencies, including the state fire marshal, enjoy the power to subpoena witnesses. State law supplies few, if any, special rules regarding the use and service of administrative subpoenas, though a person receiving such a subpoena should always consult the particular statutory authority cited in support of it.

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B. How to Quash

1. Contact other party first

As an initial matter, contacting the subpoenaing party is almost always advisable, because some attorneys are both unfamiliar with the reporter’s privilege and amenable to reason. But if the subpoena is defective on its face – because, for example, it was issued by a private party but is unaccompanied by a witness fee, see supra pt. V(A)(2) – tactical considerations may dictate silence until it is too late for the issuing party to remedy the problem.

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2. Filing an objection or a notice of intent

With respect to subpoenas that call for the production of documents or other tangible objects, the person commanded to produce the items may either file a motion to quash, see infra pt. V(B)(3), or else simply serve a timely “written objection” upon all parties.  Rule 1-045(C)(2)(b) NMRA; Rule 5-511(C)(2)(b) NMRA.  If such an objection is made, “the party serving the subpoena shall not be entitled to inspect[ and] copy the materials ... except pursuant to an order of the court by which the subpoena was issued [upon a motion to compel].” Rule 1-045(C)(2)(b)(iii) NMRA; accord Rule 5-511(C)(2)(b) NMRA. Any such written objections must be served within 14 days after service of the subpoena, see Rule 1-045(C)(2)(B) NMRA, “or before the time specified for compliance if such time is less than [14] days after service,” Rule 5-511(C)(2)(b) NMRA. The objections must claim the reporter’s privilege “expressly” and must include “a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.” Rule 1-045(D)(2)(a) NMRA; Rule 5-511(D)(2) NMRA.

Although the written-objections alternative is set forth in rules of judicial procedure, it ought to suffice for the purpose of contesting most legislative, administrative, and executive subpoenas as well. Many of the statutes authorizing such extrajudicial subpoenas incorporate court rules. See, e.g., NMSA 1978, § 12-8-15(C) (1969) (Administrative Procedures Act). More importantly, the statutory reporter's privilege applicable to nonjudicial proceedings provides that “application shall be made to the district court of the county in which the proceeding is being held for an order of disclosure,” NMSA 1978, § 38-6-7(C) (1973) – implying that a journalist can discharge her initial obligation merely by objecting to the subpoena instead of moving to quash it.

By placing the burden on the subpoenaing party to file a motion to compel, the service of written objections enables the subpoenaed party to postpone – and occasionally to avoid altogether – the effort and expense of preparing papers for submission to a court. The downside is that the moving party not only gets two briefs to the responding party’s one, but also enjoys the final written word on the subject (the reply brief). But if the briefing sequence is perceived as a serious disadvantage, the journalist can always file a cross-motion to quash along with her response to the motion to compel; and in any event, the district court will almost certainly hold a hearing at which arguments made in reply briefs can be addressed.

If the subpoena commands its recipient not only to produce documents, but also to appear in person to give testimony at a deposition, a hearing, or a trial, written objections will be insufficient, and a motion to quash will be necessary. The rules of procedure do not require a notice of intent or any other filing in advance of such a motion.

A motion to quash, like a motion to compel, is addressed to the court that issued the subpoena. See Rule 1-045(C)(2)(b)(iii), (3)(a) NMRA; Rule 5-511(C)(2)(b), (3)(a) NMRA. If the subpoena is issued in a nonjudicial proceeding, “the district court of the county in which the proceeding is being held” will ultimately be the proper forum, NMSA 1978, § 38-6-7(C) (1973), though in some cases it may be desirable to file an initial motion to quash with the issuing body itself.

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3. File a motion to quash

a. Which court?

A motion to quash, like a motion to compel, is addressed to the court that issued the subpoena. See Rule 1-045(C)(2)(b)(iii), (3)(a) NMRA; Rule 5-511(C)(2)(b), (3)(a) NMRA. If the subpoena is issued in a nonjudicial proceeding, “the district court of the county in which the proceeding is being held” will ultimately be the proper forum, NMSA 1978, § 38-6-7(C) (1973), though in some cases it may be desirable to file an initial motion to quash with the issuing body itself.

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b. Motion to compel

The relationship between motions to compel and motions to quash is discussed above. See supra pt. V(B)(2).

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c. Timing

A motion to quash must be “timely.” Rule 1-045(C)(3)(a) NMRA; Rule 5-511(C)(3)(a) NMRA. The subpoenaed party cannot go wrong by conforming to the deadline for written objections – 14 days after service of the subpoena, see Rule 1-045(C)(2)(b), “or before the time specified for compliance if such time is less than [14] days after service,” Rule 5-511(C)(2)(b).

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d. Language

There is no stock language or preferred text for motions to quash. But the reporter’s privilege must be claimed “expressly,” and the motion must be “supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.” Rule 1-045(D)(2)(a) NMRA; Rule 5-511(D)(2) NMRA.

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e. Additional material

Receptiveness to attachments varies from judge to judge. In any event, the subpoenaed party should take care to research and obey any local rules that may limit the number of attached pages. See, e.g., N.M. 2d Judicial Dist. R. 119(B) (25 pages, except by leave of court).

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4. In camera review

a. Necessity

Rule 11-514 provides that “[i]f possible,” the court will determine whether the subpoenaing party has successfully overcome the qualified reporter’s privilege “without requiring disclosure of the confidential source or information sought to be protected by the privilege.” But “[i]f it is not possible for the court to make [that] determination ... without the court knowing the confidential source or information sought to be protected, the court may issue an order requiring disclosure to the court alone, in camera.” Rule 11-514(D) NMRA.

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Rule 11-514 provides:

"Following the in camera hearing, the court shall enter written findings of fact and conclusions of law without disclosing any of the matters for which the privilege is asserted, and a written order ....

Evidence submitted to the court in camera, and any record of the in camera proceedings, shall be sealed and preserved to be made available to an appellate court in the event of an appeal. The contents of the sealed evidence shall not be revealed without the consent of the person asserting the privilege.

. . . .

Any order ... ordering ... disclosure may be appealed ... in the procedural manner provided by the Rules of Appellate Procedure."

Rule 11-514(D) NMRA. A fair reading of these passages is that any confidential information or sources revealed to the court in camera will remain under seal as long as the privilege-holder wants them to. A separate question, however, is whether the reporter’s obligation to obey an order of disclosure is stayed pending appeal. See infra pt. VIII(B)(2).

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c. Consequences of refusing

“Any order requiring an in camera disclosure ... may be appealed ... in the procedural manner provided by the Rules of Appellate Procedure.” Rule 11-514(D) NMRA. The “procedural manner provided by the Rules of Appellate Procedure” is presumably the “writ of error,” which codifies the collateral-order doctrine. Allowance of an appeal under this doctrine is purely discretionary with the appellate court. See Rule 12-503(L) NMRA.

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5. Briefing schedule

The motion to quash must be “timely.” Rule 1-045(C)(3)(a) NMRA; Rule 5-511(C)(3)(a) NMRA. Like any opposed motion, it may be accompanied by “a brief or supporting points with citations or authorities.” Rule 1-007.1(C) NMRA (civil cases); Rule 5-120(D) NMRA (criminal cases). Written responses must be filed within 15 days after the motion is served, and a reply brief in support of the motion can be filed within 15 days after service of the response. Rule 1-007.1(D), (F) NMRA; Rule 5-120(E) to (F) NMRA.

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6. Amicus briefs

New Mexico appellate courts routinely accept amicus briefs, but the practice is far less common at the district-court level. In the past, the New Mexico Press Association (P.O. Box 95198, Albuquerque, N.M. 87199; 505-275-1241) and the New Mexico Broadcasters Association (2333 Wisconsin St. NE, Albuquerque, N.M. 87110; 505-881-4444) have occasionally weighed in with amicus briefs on issues of concern to the press.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The party seeking disclosure of confidential information or sources must demonstrate an exception to the reporter’s privilege “by a preponderance of evidence, including all reasonable inferences.” Rule 11-514(C) NMRA.

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B. Elements

To overcome the reporter’s privilege in judicial proceedings, the subpoenaing party must show that:

"(1) a reasonable probability exists that a news media person has confidential information or sources that are material and relevant to the action;

(2) the party seeking disclosure has reasonably exhausted alternative means of discovering the confidential information or sources sought to be disclosed;

(3) the confidential information or source is crucial to the case of the party seeking disclosure; and

(4) the need of the party seeking the confidential source or information is of such importance that it clearly outweighs the public interest in protecting the news media’s confidential information and sources."

Rule 11-514(C) NMRA. To overcome the statutory privilege applicable to nonjudicial proceedings, the subpoenaing party must show that disclosure is “essential to prevent injustice.” NMSA 1978, § 38-6-7(A), (C) (1973).

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1. Relevance of material to case at bar

Under Rule 11-514, the threshold question is whether the information or the source is “material and relevant to the action.” But relevance is not enough; the information or source must be “crucial.” Rule 11-514(C)(1), (3) NMRA. “Essential” is the standard under the statutory privilege applicable to nonjudicial proceedings. NMSA 1978, § 38-6-7(A), (C) (1973).

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2. Material unavailable from other sources

Under Rule 11-514, the subpoenaing party must show that he “has reasonably exhausted alternative means of discovering the confidential information or sources.” Rule 11-514(C)(2) NMRA. The statutory privilege applicable to nonjudicial proceedings does not specifically address the point, but a requirement that the material be unavailable elsewhere is implicit in the “essential to prevent injustice” standard. NMSA 1978, § 38-6-7(A), (C) (1973).

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a. How exhaustive must search be?

Rule 11-514 demands that the subpoenaing party conduct a “reasonably” exhaustive search for alternatives, see Rule 11-514(C)(2) NMRA, but no case law exists to illustrate what this means in practice.

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b. What proof of search does a subpoenaing party need to make?

Under Rule 11-514, the subpoenaing party must “show[] by a preponderance of the evidence, including all reasonable inferences,” that he has already “reasonably exhausted alternative means of discovering the confidential information or sources.” Rule 11-514(C)(2) NMRA.

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c. Source is an eyewitness to a crime

No New Mexico law specifically addresses this situation. See supra pt. III(G).

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3. Balancing of interests

Under Rule 11-514, the privilege prevails unless “the need of the party seeking the confidential source or information is of such importance that it clearly outweighs the public interest in protecting the news media’s confidential information and sources.” Rule 11-514(C)(4) NMRA.

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4. Subpoena not overbroad or unduly burdensome

The vices of overbreadth and undue burden are not specifically addressed by Rule 11-514 or the statutory privilege applicable to nonjudicial proceedings. But the rules of civil and criminal procedure generally applicable to subpoenas declare that “[a] party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty ....” Rule 1-045(C)(1) NMRA; Rule 5-511(C)(1) NMRA; see also Rule 1-045(C)(3)(a)(iv) NMRA (subpoena can be quashed or modified if it “subjects a person to undue burden”); Rule 5-511(C)(3)(a)(iv) NMRA (same).

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5. Threat to human life

No New Mexico law specifically addresses this issue.

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6. Material is not cumulative

The reporter’s privilege should protect cumulative material – which, by definition, is not “crucial to the case of the party seeking disclosure,” Rule 11-514(C)(3) NMRA, or “essential to prevent injustice,” NMSA 1978, § 38-6-7(A), (C) (1973).

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7. Civil/criminal rules of procedure

Not addressed.

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8. Other elements

New Mexico courts have not formulated any additional elements of the exception to the reporter’s privilege.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

The original codification of the reporter’s privilege in New Mexico – which has since been superseded – declared that “[a]ny reporter may waive the privilege granted in this section.” Act of Mar. 28, 1967, ch. 168, § 1(C), 1967 N.M. Laws 978, 979 (superseded 1973). The present-day version of the statute, applicable only to nonjudicial proceedings, does not specifically mention the possibility of waiver. See NMSA 1978, § 38-6-7 (1973). Regarding the reporter’s privilege that obtains in judicial proceedings, general waiver principles govern the larger body of privilege law within which it falls. See Rule 11-511 NMRA (“A person who possesses a privilege against disclosure of a confidential matter or communication waives the privilege if the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.”).

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2. Elements of waiver

a. Disclosure of confidential source's name

No New Mexico law specifically addresses this issue.

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b. Disclosure of non-confidential source's name

No New Mexico law specifically addresses this issue. Presumably, however, because Rule 11-514 protects only confidential sources, see Rule 11-514(B)(1) NMRA, identification of non-confidential sources would not implicate the privilege, let alone waive it.

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c. Partial disclosure of information

No New Mexico law specifically addresses this issue. But according to general evidentiary principles, “disclosure of any significant part of [a privileged] matter or communication” waives the privilege. Rule 11-511 NMRA.

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d. Other elements

No published New Mexico appellate opinions have discussed the ways in which a reporter might waive the privilege.

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3. Agreement to partially testify act as waiver?

No New Mexico law specifically addresses this issue. But it seems unlikely that a reporter’s testimony to the effect that her story was true and accurate as published would work a waiver of her privilege not to identify her confidential sources or to disclose the confidential information that remained unpublished. Cf., e.g., Pub. Serv. Co. v. Lyons, 2000-NMCA-077, ¶¶ 1, 22, 129 N.M. 487, 10 P.3d 166 (holding that under Rule 11-511, party cannot “implicitly” waive attorney-client privilege by pleading claims to which privileged communications might be relevant, but instead must make “offensive or direct use of [the] privileged materials”).

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VII. What constitutes compliance?

A. Newspaper articles

The reporter’s privilege would not protect a journalist from having to testify that a particular article actually appeared in the newspaper. See Rule 11-514(A)(2), (B)(2) NMRA; NMSA 1978, § 38-6-7(A), (B)(5) (1973). On the other hand, a librarian or a records custodian could as easily give such testimony if it were up to the newspaper to designate an appropriate witness; and in any event, “[p]rinted material purporting to be a newspaper or periodical” is self-authenticating. Rule 11-902(6) NMRA.

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B. Broadcast materials

No New Mexico law specifically addresses this issue.

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C. Testimony vs. affidavits

Generally speaking, affidavits do not constitute admissible evidence at trial. But litigants frequently stipulate to the authenticity of exhibits in lieu of presenting the testimony of records custodians. And newspapers and other periodicals are self-authenticating. See Rule 11-902(6) NMRA.

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D. Non-compliance remedies

1. Civil contempt

No New Mexico law specifically addresses this issue with respect to an unsuccessful assertion of the reporter’s privilege. In general, however, “[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.” Rule 1-045(E) NMRA; Rule 5-511(E) NMRA; see also Rule 1-037(B)(1) NMRA (“If a deponent fails ... to answer a question after being directed to do so by a court with jurisdiction, the failure may be considered a contempt of that court.”); Rule 5-503.2(B)(1) NMRA (same).

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a. Fines

No New Mexico law specifically addresses this issue with respect to an unsuccessful assertion of the reporter’s privilege. In general, however, courts can levy compensatory or coercive fines in cases of civil contempt. No law caps such fines.

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b. Jail

No New Mexico law specifically addresses this issue with respect to an unsuccessful assertion of the reporter’s privilege. In general, however, courts can impose coercive jail sentences in cases of civil contempt. No law limits such sentences.

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2. Criminal contempt

No New Mexico law specifically addresses this issue with respect to an unsuccessful assertion of the reporter’s privilege. In general, however, disobedience of a court order can be punished as a criminal contempt, and a fine or a jail sentence can be imposed.

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3. Other remedies

No New Mexico law specifically addresses the consequences of refusal to obey an order to disclose confidential information or sources. Regarding discovery sanctions generally, see Rule 1-037(B) NMRA.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Rule 11-514 provides that “[a]ny order requiring ... disclosure may be appealed by any party or by the person asserting the privilege, if not a party, in the procedural manner provided by the Rules of Appellate Procedure.” Rule 11-514(D) NMRA. But the reporter’s-privilege statute enacted by the legislature in 1973 calls for appellate procedures quite alien to the Rules of Appellate Procedure: it provides that “an order [of disclosure] is appealable to the supreme court if the appeal is docketed in that court within ten days after its entry.” NMSA 1978, § 38-6-7(C) (1973). Although the supreme court in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), found much of this statute to be an unconstitutional arrogation of judicial power by the legislature, the court acknowledged that the legislature “[u]nquestionably ... has the power to determine in what district court cases, civil and criminal, this court shall exercise appellate jurisdiction,” id. at 312, 551 P.2d at 1359. Arguably, then, the supreme court has a duty to hear an interlocutory appeal taken within ten days from any disclosure order. To play it safe, however, a journalist seeking appellate review of such an order may wish to file provisional notices of appeal “in the procedural manner provided by the Rules of Appellate Procedure.” Rule 11-514(D) NMRA. The remainder of this section discusses appellate procedures of general application.

If an order recites that it “involves a controlling question of law as to which there is substantial ground for difference of opinion and ... an immediate appeal ... may materially advance the ultimate termination of the litigation,” NMSA 1978, § 39-3-4(A) (1999), an aggrieved party can apply for an interlocutory appeal within 15 days after entry of the order, see Rule 12-203(A) NMRA. The appellate court has discretion to accept the appeal or decline it. See Rule 12-203(B) NMRA.

If the order does not contain the certification necessary for interlocutory appeal, the aggrieved party can seek a “writ of error” – the vehicle for review under the collateral-order doctrine – within 30 days after the order is filed. Rule 12-503(C) NMRA. The application for a writ of error must demonstrate that the order “(a) conclusively determines the disputed question; (b) resolves an important issue completely separate from the merits of the action; and (c) would be effectively unreviewable on appeal from a final judgment because the remedy by way of appeal would be inadequate.” Rule 12-503(E)(2) NMRA. “The appellate court in its discretion may issue the writ." Rule 12-503(L) NMRA.

A journalist might also seek an “extraordinary writ” of prohibition from the supreme court, see Rule 12-504 NMRA, though this remedy is highly discretionary and rarely granted. It is particularly disfavored when review appears at least theoretically available by another means or in another court. See Rule 12-504(B)(1)(b) NMRA.

Alternatively, the journalist might choose to disobey the order and incur a finding of contempt. A state statute provides that “[a]ny person aggrieved by the judgment of the district court in any proceeding for civil contempt, and any person convicted of criminal contempt except criminal contempt committed in the presence of the court, may appeal within thirty days from the judgment of conviction.” NMSA 1978, § 39-3-15(A) (1966). Despite the exception carved out by this statute for “criminal contempt committed in the presence of the court,” New Mexico courts apparently consider convictions on such charges no less appealable than other categories of contempt. See, e.g., State v. Ngo, 2001-NMCA-041, ¶ 7, 130 N.M. 515, 27 P.3d 1002 (order of direct criminal contempt is “final and appealable when entered”).

Rules governing procedures in courts of limited jurisdiction – i.e., the metropolitan court (which currently exists only in Bernalillo County) and the magistrate courts – do not appear to contemplate interlocutory appeals. See Rule 1-072(A) NMRA (permitting appeal from “judgment or final order”); Rule 1-073(A) NMRA (same); Rule 2-705(A) NMRA (same); 3-706(A) NMRA (same). But Rule 11-514 expressly empowers a reporter to appeal from an order of disclosure “in the procedural manner provided by the Rules of Appellate Procedure” – rules that do allow for interlocutory appeals. See supra. In any event, a notice of appeal from a court of limited jurisdiction must be filed within 15 days after the filing of the judgment or order at issue. See Rule 1-072(A) NMRA; Rule 1-073(A) NMRA; Rule 2-705(A) NMRA; Rule 3-706(A) NMRA.

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2. Expedited appeals

The New Mexico Court of Appeals – the forum to which nearly all appeals of right from the district court are taken, see infra pt. VIII(B)(1) – maintains an “expedited bench decision program” under which briefing times are shortened, cases are submitted to a panel of judges at the court's earliest opportunity, and decisions are ordinarily rendered on the day of oral argument. Any appellate litigant can move for expedited case-handling on this basis. See Rule 12-210(E) NMRA (referring interested litigants to court’s website for details). But the reporter’s privilege statute specifies an appeal to the supreme court, see NMSA 1978, § 38-6-7(C) (1973), where no such expedited option is routinely available. While the constitutionality of this appeal provision in the context of judicial proceedings isn’t entirely clear, see supra pt. VIII(A)(1), the portion of the statute declaring that an appeal from a disclosure order “shall be considered as an extraordinary proceeding and shall be heard de novo and within twenty days from date of docketing,” NMSA 1978, § 38-6-7(C) (1973), is plainly invalid, see Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 312-13, 551 P.2d 1354, 1359-60 (1976).

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B. Procedure

1. To whom is the appeal made?

Most appeals from the district court – not including those involving “a sentence of death or life imprisonment” or the grant of a writ of habeas corpus – are taken to the court of appeals. See Rule 12-102 NMRA. But the reporter’s-privilege statute specifies an appeal to the supreme court “if the appeal is docketed in that court within ten days after its entry.” NMSA 1978, § 38-6-7(C) (1973). Lingering questions about the statute’s constitutionality probably necessitate alternative appeals to both courts. See supra pt. VIII(A)(1).

Appeals from the metropolitan court or the magistrate court are taken to the district court. See Rule 1-072(A) NMRA; Rule 1-073(A) NMRA.

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2. Stays pending appeal

The reporter’s-privilege statute provides that “[t]he taking of an appeal shall operate to stay proceedings ... in the district court.” NMSA 1978, § 38-6-7(C) (1973). Conceivably, a court could deem this provision an unconstitutional attempt by the legislature “to regulate practice and procedure in the courts.” Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 312, 551 P.2d 1354, 1359 (1976); see supra pt. VIII(A)(1). But it is presumably valid at least to the extent that the district court’s order pertains to an order of disclosure in proceedings before a legislative, administrative, or executive body. See Ammerman, 89 N.M. at 312, 551 P.2d at 1359. In case the stay provision is unconstitutional with respect to disclosure orders arising out of judicial proceedings, the remainder of this section discusses appellate procedures of general application. See supra pt. VIII(A)(1).

“The granting of an application [for interlocutory appeal] shall automatically stay the proceedings in the district court unless otherwise ordered by the appellate court.” Rule 12-203(F) NMRA. “[A] party seeking either a stay of the order that is the subject of the writ of error or a stay of proceedings pending appeal shall first seek such an order from the district court, and any party may thereafter seek appellate review of the district court’s ruling pursuant to Rule 12-205, 12-206, or 12-207 NMRA.” Rule 12-503(M) NMRA. Rules 12-205, 12-206, and 12-207 concern “Release pending appeal in criminal matters,” “Stay pending appeal in children’s court matters,” and “Supersedeas and stay in civil matters,” respectively, and should be consulted as appropriate. Stays are also available in connection with the issuance of extraordinary writs of prohibition. See Rule 12-504(D) NMRA. Regarding stays of orders and judgments of the magistrate and metropolitan courts, see Rule 2-705(G) to (H) NMRA and Rule 3-706(G) to (H) NMRA.

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3. Nature of appeal

See supra pt. VIII(A)(1).

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4. Standard of review

The 1973 legislature considered the reporter’s privilege so important that it undertook to require the supreme court to hear appeals from disclosure orders “de novo.” NMSA 1978, § 38-6-7(C) (1973). But in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), the supreme court rejected that provision as an unconstitutional legislative encroachment on judicial prerogative. The court held that appeals from disclosure orders would be treated no differently from other cases:

"The fact-finding process has always been left to the district courts. That is, factual issues are determined either by the trial jury or the trial court sitting without a jury. The weight and credibility of the evidence and of witnesses are left for the trier of the facts and are not subjects of review by this court.

Our review of the evidence is only for the purpose of determining whether there was substantial evidence to support the trier of the facts."

Id. at 313, 551 P.2d at 1360 (citations omitted).

In other contexts, the New Mexico appellate courts have stated that they “review discovery orders for abuses of discretion.” Pub. Serv. Co. v. Lyons, 2000-NMCA-077, ¶ 10, 129 N.M. 487, 10 P.3d 166. But to the extent that an appeal concerns a “trial court's construction of law regarding privileges ..., it presents a legal question that [the court] review[s] de novo.” Id.

Appeals from the magistrate court to the district court – at least appeals from “final judgments and decisions” – are de novo in all respects. N.M. Const. art. VI, § 27.

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5. Addressing mootness questions

No New Mexico law specifically addresses this issue in relation to the reporter’s privilege. But see, e.g., State ex rel. N.M. Press Ass'n v. Kaufman, 98 N.M. 261, 265-66, 648 P.2d 300, 304-05 (1982) (reviewing trial court’s restrictions on press coverage of murder trial after trial’s conclusion, because “the issues involved are of substantial public interest and are capable of repetition yet evading appellate review”).

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6. Relief

Journalists should not hesitate to ask the appellate court to dissolve a contempt citation or to direct that a subpoena be quashed – recognizing, of course, that the appellate court, in deference to the lower court, may prefer to remand the matter so that the lower court has an opportunity to do the right thing on its own.

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IX. Other issues

A. Newsroom searches

No New Mexico law specifically addresses this issue.

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B. Separation orders

No New Mexico law specifically addresses this issue.

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C. Third-party subpoenas

No New Mexico law specifically addresses this issue.

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D. The source's rights and interests

No New Mexico law specifically addresses this issue.

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