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Vermont

Reporters Privilege Compendium

Robert B. Hemley, Esq.
Erin M. Moore, Esq.
Gravel and Shea
76 St. Paul Street, 7th Floor
P.O. Box 369
Burlington, VT 05402-0369
(802) 658-0220
www.gravelshea.com
rhemley@gravelshea.com
emoore@gravelshea.com

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I. Introduction: History & Background

Effective May 17, 2017, Vermont adopted a shield law for the first time, reversing a trend in Vermont Supreme Court cases that was eroding the rights of journalists.  There have not yet been any published cases interpreting the newly enacted law, though on February 16, 2018, the Washington Unit of the Vermont Superior Court sealed its decision quashing an inquest in the matter of In re: VSP-TK-1-16-18 Shooting, Docket No. 1-1-18 Wncm.  The television station involved has filed a motion to unseal the decision, which is pending.  Accordingly, the available case law pre-dates the statutory shield law and provides general guidelines for contesting news media subpoenas pursuant to Vermont’s Rules of Civil Procedure and Vermont jurisprudence construing the United States and Vermont Constitutions and Vermont common law.

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II. Authority for and source of the right

A. Shield law statute

In 2017, the General Assembly enacted a Shield Law to protect journalists and their sources. See 12 V.S.A. § 1615.  The law creates two privileges. The first provides an absolute privilege “to a journalist to disclose news or information obtained or received in confidence.” 12 V.S.A. § 1615(b)(1). The second creates a qualified privilege to “a journalist to disclose news or information that was not obtained or received in confidence unless it finds that the party seeking the news or information establishes by clear and convincing evidence” that the information is: (1) highly material to a significant legal issue before the court; (2) the news or information could not, with due diligence, be obtained by alternative means; and (3) there is a compelling need for disclosure. 12 V.S.A. § 1615(b)(2). The act contains broad definitions of “journalist” and “journalism.”

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B. State constitutional provision

Vermont’s Constitution provides in relevant part that: “the people have a right to freedom of speech, and of writing and publishing their sentiments, concerning the transactions of government, and therefore the freedom of the press ought not to be restrained.” Vermont Constitution, Chap. I, Art. 13.

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C. Federal constitutional provision

The First Amendment to the United States Constitution provides in relevant part as follows: “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .” U.S. Const. amend. I.

The United States Supreme Court has held that the unqualified prohibitions laid down by the framers of the Constitution were intended to give the liberty of the press the broadest scope that could be countenanced in an orderly society. Sheppard v. Maxwell, 384 U.S. 333 (1966). These rights are not, however, unlimited.  See Branzburg v. Hayes, 408 U.S. 665, 690-691 (1972) (holding there is no constitutional privilege under the First Amendment that excuses reporters from appearing and testifying before grand juries investigating criminal conduct, even if the source of their information is confidential).  The Second Circuit Court of Appeals has recognized a qualified reporter’s privilege arising out of the First Amendment. See United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (noting that under the applicable test, “the First Amendment interests” of the reporter are balanced against the “evidentiary needs” of the party seeking the information); Am. Sav. Bank, FSB v. UBS PaineWebber, Inc. (In re Fitch, Inc.), 330 F.3d 104, 109 (2d Cir. 2003) (recognizing a common law privilege independent of New York’s shield law that can be asserted by journalists resisting a subpoena).

In State v. St. Peter, 132 Vt. 266, 271, 315 A.2d 254 (1974), the Vermont Supreme Court recognized a qualified reporter’s privilege under the First Amendment to refuse to give testimony in a criminal case absent a showing by the party seeking disclosure that there is no other adequately available source for the information and that the information sought is relevant and material on the issue of guilt or innocence. The Court reaffirmed this holding in 2005, confirming that a qualified reporter’s privilege exists in all “cases in which a news reporter is ‘legitimately entitled to First Amendment protection.’”  In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 14, 890 A.2d 1240 (Vt. 2005).

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D. Other sources

Prior to the enactment of the Vermont Shield Law, two cases illustrated an apparent movement by the Vermont Supreme Court to limit journalists’ ability to exercise the privilege.  First, in a criminal case, the Vermont Supreme Court held that no privilege exists under the First Amendment that would protect a journalist from “disclos[ing] evidence of a crime, or evidence that is relevant and material to a criminal investigation, when properly subpoenaed.” In re Inquest Subpoena (WCAX), 179 Vt. 12, 21, 2005 VT 103, ¶¶ 20–21, 890 A.2d 1240, 1247 (Vt. 2005). In the WCAX case, the Supreme Court reversed the decision of the lower court to quash a subpoena issued to a television station for video footage of UVM students celebrating the 2004 American League Championship Series win by the Boston Red Sox over the New York Yankees; the celebration “turned into a riot” on the UVM campus, and the footage captured persons committing crimes and vandalism. Id. ¶ 1, 179 Vt. at 13, 890 A.2d at 1241. The court noted that “a reporter’s investigation of criminal activity is exactly the kind of information Branzburg [v. Hayes, 408 U.S. 665, 708 (1972)] does not allow reporters to shield, absent proof that the investigation is motivated by an illegitimate purpose”). Id. ¶ 20, 179 Vt. at 21, 890 A.2d at 1247.

Second, in a civil case, the Vermont Supreme Court held that a journalist does not have a qualified First Amendment privilege to refuse to testify about events witnessed or statements heard at a public meeting. See Spooner v. Town of Topsham, 182 Vt. 328, 329, 2007 VT 98, ¶ 1, 937 A.2d 641, 642 (Vt. 2007). In Spooner, the Vermont Supreme Court reversed the decision of the lower court to quash a subpoena calling for the deposition of a local newspaper reporter regarding statements made at a town selectboard meeting. The plaintiff, an unsuccessful candidate for the position of road foreman, had sued the town for employment discrimination. The reporter attended the meeting in his capacity as a member of the news media, and wrote an article reporting on the comments of several town selectmen which supported plaintiff’s claim. See id. ¶¶ 2–3, 182 Vt. at 329, 937 A.2d at 642. The Spooner Court found that, on the facts presented, the reporter did not have a qualified First Amendment privilege to “refuse to testify about the events he witnessed at a public selectboard hearing.” Id. ¶¶ 1, 14–16, 182 Vt. at 329, 335–37, 937 A.2d at 642, 646–47 (noting that “we are not persuaded that compelling the reporter’s testimony in this case will unduly burden the newsgathering function of the press”). Thus, arguably, the decision in Spooner can be limited to its facts: the witnessing of events by a reporter at a public meeting.

It is worth noting that in both Spooner and WCAX, the Court acknowledged its decision in State v. St. Peter, 132 Vt. 266, 315 A.2d 254 (1974), indicating that, in appropriate cases, the Court would apply the well-known and long-standing balancing test adopted in that case. Therefore, under Vermont law, in situations where the qualified journalist’s privilege is found to attach, a litigant can overcome the privilege and obtain discovery only upon a showing that (1) “there is no other adequately available source for the information,” and (2) the information “is relevant and material to a significant issue in the case.” Spooner, ¶ 17, 182 Vt. at 337, 937 A.2d at 647–48; see also WCAX, ¶¶ 12–14, 179 Vt. at 17–18, 890 A.2d at 1243–44 (confirming that a qualified reporter’s privilege exists in all “cases in which a news reporter is ‘legitimately entitled to First Amendment protection’”). In the Spooner case, however, the Court found that, even if it applied the appropriate balancing test, the plaintiff could compel the reporter’s testimony because the record failed to show “that the other witnesses [to the meeting] offered an adequate alternative source of the information sought.” Id. ¶ 19, 182 Vt. at 339, 937 A.2d at 648.

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III. Scope of protection

A. Generally

The Vermont Shield Law contains broad definitions of “journalist” and “journalism.” The statute applies to “journalists” and defines a journalist as “an individual or organization engaging in journalism or assisting an individual or organization engaging in journalism at the time the news or information sought to be compelled . . . was obtained” or “or any supervisor, employer, parent company, subsidiary, or affiliate of an individual or organization engaging in journalism . . . .”  12 V.S.A. § 1615(a)(1).  The Shield Law then defines “journalism” as:

(a) investigating issues or events of public interest for the primary purpose of reporting, publishing, or distributing news or information to the public, whether or not the news or information is ultimately published or distributed; or

(b) preparing news or information concerning issues or events of public interest for publishing or distributing to the public, whether or not the news or information is ultimately published or distributed.

Id. at (a)(2).

It bears noting that the protection provided by the Shield Law for non-confidential information is greater than that afforded by the reporter’s privilege under the First Amendment even for confidential materials.  See In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 17, 890 A.2d 1240 (Vt. 2005); Spooner v. Town of Topsham, 2007 VT 98, ¶¶ 18-19, 937 A.2d 641 (Vt. 2007).

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B. Absolute or qualified privilege

The Vermont Shield Law provides an absolute privilege for confidential information and a qualified privilege for non-confidential information.

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C. Type of case

1. Civil

The Vermont Shield Law provides an absolute privilege for confidential information and a qualified privilege for non-confidential information.  It does not distinguish between civil and criminal matters.  See 12 V.S.A. § 1615(b) (applying to all “court[s] or legislative, administrative, or other bod[ies] with the power to issue a subpoena”).

Prior to the Vermont Shield Law’s enactment, Vermont courts relied on United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983), for the proposition that there is “no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter’s interest in confidentiality should yield to the moving party’s need for probative evidence.”  See Spooner v. Town of Topsham, 2007 VT 98, ¶ 11, 937 A.2d 641 (Vt. 2007) (quoting United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983)).

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2. Criminal

The Vermont Shield Law provides an absolute privilege for confidential information and a qualified privilege for non-confidential information.  It does not distinguish between criminal and civil matters.  See 12 V.S.A. § 1615(b) (applying to all “court[s] or legislative, administrative, or other bod[ies] with the power to issue a subpoena”).

Prior to the Vermont Shield Law’s enactment, the Vermont Supreme Court recognized a qualified reporter’s privilege under the First Amendment to refuse to give testimony in a criminal case absent a showing by the party seeking disclosure that there is no other adequately available source for the information and that the information sought is relevant and material on the issue of guilt or innocence.  See State v. St. Peter, 132 Vt. 266, 271, 315 A.2d 254 (Vt. 1974); see also In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 14 (Vt. 2005) (holding that a qualified reporter’s privilege exists in all “cases in which a news reporter is ‘legitimately entitled to First Amendment protection.’”) (citation omitted).

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3. Grand jury

The Vermont Shield Law provides an absolute privilege for confidential information and a qualified privilege for non-confidential information.  It does not contain a carve-out for grand jury proceedings.  See 12 V.S.A. § 1615(b) (applying to all “court[s] or legislative, administrative, or other bod[ies] with the power to issue a subpoena”).

Prior to the Vermont Shield Law’s enactment, the Vermont Supreme Court analogized a criminal inquest to the grand jury investigation in Branzburg and held that “[t]he balancing test adopted in St. Peter does not apply” and therefore a television station had no privilege, qualified or otherwise, to withhold unpublished videotape showing the commission of certain crimes.  In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 14, 890 A.2d 1240 (Vt. 2005).

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D. Information and/or identity of source

The Vermont Shield Law provides absolute protection for the identity of the source of confidential news or information.  12 V.S.A. § 1615(b)(1)(A)(i).

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E. Confidential and/or nonconfidential information

Information received or gathered by a journalist in confidence is entitled to absolute protection, and cannot be compelled to be produced in any situation:

(1) No court or legislative, administrative, or other body with the power to issue a subpoena shall compel:

(A) a journalist to disclose news or information obtained or received in confidence, including:

(i) the identity of the source of that news or information; or

(ii) news or information that is not published or disseminated, including notes, outtakes, photographs, photographic negatives, video or audio recordings, film, or other data.

12 V.S.A. § 1615(b)(1).  This iron-clad protection puts Vermont on par with states like New York and Pennsylvania that offer similar privileges for journalists to protect confidential news sources, and exceeds what any court has determined is required solely by the First Amendment.

A second provision applies specifically to non-confidential journalistic information, establishing a robust qualified privilege that can be overcome only where, based on “clear and convincing evidence,” a strict three-part test has been satisfied:

(2) No court or legislative, administrative, or other body with the power to issue a subpoena shall compel:

(A) a journalist to disclose news or information that was not obtained or received in confidence unless it finds that the party seeking the news or information establishes by clear and convincing evidence that:

(i) the news or information is highly material or relevant to a significant legal issue before the court or other body;

(ii) the news or information could not, with due diligence, be obtained by alternative means; and

(iii) there is a compelling need for disclosure.

Id. at (b)(2).  Protections are thus expressly extended to non-confidential materials.  Id.

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F. Published and/or non-published material

The Vermont Shield Law does not draw a distinction between published and non-published material.  See 12 V.S.A. § 1615(a)(2) (applying “whether or not the news or information is ultimately published or distributed”).

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G. Reporter's personal observations

The Vermont Shield Law’s broad protections appear to encompass a reporter’s personal observations.  Prior to the Shield Law’s enactment, however, the Vermont Supreme Court held that a journalist does not have a qualified First Amendment privilege to refuse to testify about events witnessed or statements heard at a public meeting. See Spooner v. Town of Topsham, 182 Vt. 328, 329, 2007 VT 98, ¶ 1, 937 A.2d 641, 642 (Vt. 2007). In Spooner, the Vermont Supreme Court reversed the decision of the lower court to quash a subpoena calling for the deposition of a local newspaper reporter regarding statements made at a town selectboard meeting. The plaintiff, an unsuccessful candidate for the position of road foreman, had sued the town for employment discrimination. The reporter attended the meeting in his capacity as a member of the news media, and wrote an article reporting on the comments of several town selectmen which supported plaintiff’s claim. See id. ¶¶ 2–3, 182 Vt. at 329, 937 A.2d at 642. The Spooner Court found that, on the facts presented, the reporter did not have a qualified First Amendment privilege to “refuse to testify about the events he witnessed at a public selectboard hearing.” Id. ¶¶ 1, 14–16, 182 Vt. at 329, 335–37, 937 A.2d at 642, 646–47 (noting that “we are not persuaded that compelling the reporter’s testimony in this case will unduly burden the newsgathering function of the press”). Thus, arguably, the decision in Spooner can be limited to its facts: the witnessing of events by a reporter at a public meeting.

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H. Media as a party

Vermont courts have not addressed whether a different standard applies when the media is a party to the action.  The Vermont Shield Law does not draw a distinction between parties and non-parties to an action.  See 12 V.S.A. § 1615(a) (applying to journalists broadly).

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I. Defamation actions

In Vermont, a plaintiff seeking to establish defamation must prove the existence of a statement made by the media that tends to lower him in the estimate of a “substantial respectable group” even though that group is associated with plaintiff or constitutes a minority sector of the community. Ryan v. Herald Ass’n., Inc., 152 Vt. 275, 284, 566 A.2d 1316, 1321, (Vt. 1989).

In Lent v. Huntoon, 143 Vt. 539, 470 A.2d 1162 (Vt. 1983), the Vermont Supreme Court set forth the six prima facie elements of a defamation claim: (1) a false and defamatory statement concerning another; (2) negligence or greater fault, in publishing the statement; (3) publication to at least one third-person; (4) lack of privilege in the publication; (5) special damages or no damages if written or actionable per se; and (6) actual harm sufficient to warrant compensatory damages.  Id. at 546-47, 470 A.2d at 1167.

Vermont’s Rules of Civil Procedure do not permit pre-judgment attachments for libel or slander actions. V.R.C.P. 4.1(a). Accordingly, a plaintiff may not obtain an order freezing the assets, real property or bank accounts of a reporter or a media entity prior to the issuance of a defendant’s judgment or verdict in the plaintiff’s favor.

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IV. Who is covered

A. Statutory and case law definitions

The Vermont Shield Law contains broad definitions of “journalist” and “journalism.” The statute applies to “journalists,” and defines a journalist as “an individual or organization engaging in journalism or assisting an individual or organization engaging in journalism at the time the news or information sought to be compelled . . . was obtained” or “or any supervisor, employer, parent company, subsidiary, or affiliate of an individual or organization engaging in journalism . . . .”  12 V.S.A. § 1615(a)(1).  The Shield Law then defines “journalism” as:

(a) investigating issues or events of public interest for the primary purpose of reporting, publishing, or distributing news or information to the public, whether or not the news or information is ultimately published or distributed; or

(b) preparing news or information concerning issues or events of public interest for publishing or distributing to the public, whether or not the news or information is ultimately published or distributed.

Id. at (a)(2).

The Vermont Shield Law also extends the reporter’s privilege to “a person other than a journalist,” where a subpoena seeks “news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information” pursuant to the statute.  12 V.S.A. §§ 1615(b)(1)(B), 1615(b)(2)(B).  This applies to both confidential and non-confidential information.  Id.

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1. Traditional news gatherers

Traditional news gatherers are included in Vermont’s reporter’s privilege. See 12 V.S.A. § 1615(a).

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a. Reporter

Reporters are included in Vermont’s reporter’s privilege. See 12 V.S.A. § 1615(a).  Even prior to enactment of the Vermont Shield Law, “a television news reporter” was deemed a “newsgatherer” who could assert a reporter’s privilege. State v. St. Peter, 132 Vt. 266, 268, 315 A.2d 254, 255 (Vt. 1974); see also In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 1, 179 Vt. 12, 13, 890 A.2d 1240, 1241 (Vt. 2005).

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b. Editor

Editors are included under the Vermont’s reporter’s privilege. See 12 V.S.A. § 1615(a).

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c. News

The statutory privilege does not limit the definition of “news” in any fashion, nor have the Vermont courts.

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d. Photo journalist

Although they are not specifically identified in the Vermont Shield Law, the statutory definitions of “journalist” and “journalism” are broad enough to include photo journalists.  See 12 V.S.A. § 1615(a).

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e. News organization/medium

A news organization or medium is included under the Vermont’s reporter’s privilege. See 12 V.S.A. § 1615(a).  This is consistent with case law prior to the Vermont Shield Law’s enactment.  See In re Inquest Subpoena (WCAX), 179 Vt. 12, 13-14, 890 A.2d 1240, 1241 (2005) (analyzing privilege where the State issued a subpoena to a television station for unaired video footage and the station asserted the privilege and moved to quash the subpoena).

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2. Others, including non-traditional news gatherers

Although they are not specifically identified in the Vermont Shield Law, the statutory definitions of “journalist” and “journalism” are broad enough to include non-traditional news gatherers.   See 12 V.S.A. § 1615(a).  The Vermont Shield Law also extends the reporter’s privilege to “a person other than a journalist,” where a subpoena seeks “news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information” pursuant to the statute.  12 V.S.A. §§ 1615(b)(1)(B), 1615(b)(2)(B).  This applies to both confidential and non-confidential information.  Id.

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B. Whose privilege is it?

The Vermont courts have not specifically held who is the holder of the privilege. St. Peter, however, suggests that the privilege is to be asserted by the newsgatherer from whom testimony is sought. State v. St. Peter, 132 Vt. 266, 271 315 A.2d 254, 256 (1974); see also Spooner v. Town of Topsham, 2006 Vt. Super. LEXIS 24, *19-21 (reversed and remanded) (recognizing the reporter as the holder of the privilege).  While not specifically addressing the holder of the privilege, the language of the Vermont Shield Law suggests that the reporter is the holder of the privilege.  See 12 V.S.A. § 1615.

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

A subpoena may be served by any person who is not a party to the lawsuit and who is not less than eighteen (18) years of age. Service of the subpoena is made by delivering a copy to the person named therein, along with the fees for one day’s attendance plus mileage allowed by law. See V.R.C.P. 45(b); V.R.Cr.P. 17(d). Under Vermont law, that amount is $30.00 per day and $.545 per mile for civil cases and $10.00 per day plus $.08 per mile for criminal proceedings. See 32 V.S.A. §§ 1551, 1552. There is no minimum time limit by which a subpoena must be served, but the trial court may quash or modify the subpoena if it fails to allow “reasonable time” for compliance. See V.R.C.P. 45(c)(3)(A)(i).

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2. Deposit of security

Vermont law does not require a subpoenaing party to deposit any security in order to procure the testimony or materials of a member of the media.

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3. Filing of affidavit

There is no requirement under Vermont law for the subpoenaing party to attach an affidavit to the service of a subpoena on a member of the media.

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4. Judicial approval

A subpoenaing party need not obtain judicial approval before serving a subpoena in civil proceedings and in felony criminal cases. No subpoenas seeking depositions in criminal misdemeanor cases may be issued except by agreement of the parties or after approval of the court for good cause shown. See V.R.Cr.P. 15(e)(4). The court may consider, among other things, “the consequences to the defendant, the importance of the witness’s testimony, the complexity of the issues involved, the complexity of the witness’s expected testimony (e.g., experts), and any other opportunities available to the defendant to discover the information sought by the deposition.” Id. Discovery may only be obtained in any probate court proceeding upon order of the judge after notice and hearing. See V.R.P.P. 26. Discovery may only be ordered upon a finding that it “would not be unduly burdensome or expensive, taking into account such factors as the needs of the case, the amount in controversy, limitations on the parties’ resources and the importance of the issues at stake in the litigation.” Id.

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5. Service of police or other administrative subpoenas

The chair of an administrative board, commission or panel, a hearing officer appointed by an administrative board, commission, or panel, or a licensed attorney representing a party appearing before an administrative board, commission, or panel may subpoena the attendance and testimony of any witness, including members of the media, and may subpoena the production of books and records. 3 V.S.A. § 809(h). Administrative subpoenas are enforceable by the superior court in the county where the administrative proceeding is or will be held. Id. § 809a(b). Motions to modify or vacate the administrative subpoena must be brought in that same court. Id. § 809b(a).

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B. How to Quash

1. Contact other party first

Under Vermont law, “[c]ounsel have the obligation to make good faith efforts among themselves to resolve or reduce all differences relating to discovery procedures and to avoid filing unnecessary motions.” V.R.C.P. 26(h). While it is not clear that this obligation applies to subpoenas issued to nonparties under Rule 45, it is good practice for counsel for the reporter or publisher to contact counsel for the subpoenaing party to attempt to eliminate or reduce areas of controversy in the contents of the subpoena. If the issues cannot be resolved, the motion to quash should be accompanied by an affidavit of the filing party’s attorney documenting the date of the consultation and the participants.

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2. Filing an objection or a notice of intent

If the subpoena requires the inspection or production of documents or things, the person named in the subpoena may, within fourteen (14) days of the service date of the subpoena, serve upon the subpoenaing party written notice of his or her objection to the inspection or production. See V.R.C.P. 45(c)(2)(B).  If an objection is made, the party serving the subpoena must then move for an order compelling the inspection or production from the trial court. Id.  Until an order is issued compelling their production, the subpoenaing party may not access the materials. Id.

If the subpoena requires appearance at deposition or trial, the person named in the subpoena must file a motion to quash or modify the subpoena. See V.R.C.P. 45(c)(3). In this case, there is no provision for filing an objection or a notice of intent prior to filing the motion.

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3. File a motion to quash

a. Which court?

The motion should be filed in the same court that is hearing the underlying case.

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b. Motion to compel

If the subpoena is commanding attendance at deposition or trial, the reporter or publisher being subpoenaed should not wait for the subpoenaing party to file a motion to compel. The person being subpoenaed should file a motion to quash under V.R.C.P. 45(c)(3). If the subpoena requires the production or inspection of written records or other materials, the person being subpoenaed need only serve written objection on the subpoenaing party, which then triggers the subpoenaing party’s duty to file a motion to compel. See V.R.C.P. 45(c)(2)(B).

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c. Timing

The written objection or motion to quash must be filed within fourteen (14) days of the service of the subpoena, or before the time specified for compliance if such time is less than fourteen (14) days after service. V.R.C.P. 45(c)(2)(B).

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d. Language

A motion to quash should include a memorandum of law that references the rights a reporter has under the Vermont Shield Law.  See 12 V.S.A. § 1615.  The motion should reference the statute’s broad definitions of “journalist” and “journalism” and identify whether the information sought was received in confidence.  To the extent the information was received in confidence, the motion should rely on the Shield Law’s absolute privilege.  To the extent the information sought was not received in confidence, the motion should point out that the statute requires the party seeking the information to establish by clear and convincing evidence that the information is: (1) highly material to a significant legal issue before the court; (2) the news or information could not, with due diligence, be obtained by alternative means; and (3) there is a compelling need for disclosure. 12 V.S.A. § 1615(b)(2). As the Vermont Supreme Court has explained, “[c]lear and convincing evidence is a ‘very demanding’ standard, requiring somewhat less than evidence beyond a reasonable doubt, but more than a preponderance of the evidence” and is a “heightened burden of proof.”  In re E.T., 2004 VT 111, ¶ 12, 865 A.2d 416 (Vt. 2004) (citation omitted).

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e. Additional material

There is no prohibition against filing additional material attached to a motion to quash provided that material is relevant and admissible. An explanation as to why production is burdensome is, however, required. An affidavit of compliance with V.R.C.P. 26(h) may be attached to a motion to quash.

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4. In camera review

a. Necessity

Although there is no statute or rule of civil or criminal procedure requiring in camera review before ruling on a motion to compel or a motion to quash, the Vermont Supreme Court has indicated such review is necessary to a determination of whether good cause exists for ordering the subpoenaed testimony or document production. See In re B.S., 163 Vt. 445, 452, 659 A.2d 1137, 1141-42 (Vt. 1995) (“Indeed, we are uncertain how a court can make a good cause determination without first examining the records to see what they contain”).

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Consenting to an in camera review does not automatically result in a stay pending appeal in the event of an adverse ruling. If the trial court, after an in camera review, orders that a reporter must give testimony or that his or her written material must be turned over to the subpoenaing party, the reporter can file a motion with that court for permission to file an interlocutory appeal within fourteen (14) days of that order. See V.R.A.P. 5.1(b)(5)(A). In his or her motion, the reporter can request that the testimony or production of documents be stayed pending the appeal. If the trial court denies the motion for interlocutory appeal or denies a stay pending the taking of such an appeal, the moving party may, within 14 days after entry of the order of denial, file the motion with the Supreme Court.  V.R.A.P. 5.1(b)(7).

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c. Consequences of refusing

If a reporter or publisher refuses to consent to an in camera review ordered by the trial court judge or the Vermont Supreme Court, he or she could be held in contempt of court. 12 V.S.A. §§ 121-22 (2003). Judgments of contempt lie within the discretion of the trial court judge.  Obolensky v. Trombley, 2015 VT 34, ¶ 42, 115 A.3d 1016 (Vt. 2015).  The Vermont Supreme Court has held that requiring a person held in contempt to pay the attorneys’ fees of the other party is not usually warranted, because a “defendant’s right to compel a newsreporter’s testimony has not been clearly defined.” State v. Gundlah, 160 Vt. 193, 197, 624 A.2d 328, 370 (1993). Additionally, the use of prospective fines by trial court judges against reporters or publishers is not favored in Vermont. Id.

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5. Briefing schedule

A brief in opposition to a motion to quash must be served within fourteen (14) days of service of the motion. V.R.C.P. 78(b)(1).  Vermont allows an additional three days for a response time unless the motion is served by hand delivery, regardless of when it was actually received. V.R.C.P. 6(e). To calculate the deadline, begin counting the day after the motion was filed and include holidays and weekends. V.R.C.P. 6. If the deadline falls on a Saturday, Sunday or a state or federal legal holiday, the deadline is extended until the following day. V.R.C.P. 6(a). Under V.R.C.P. 78(b)(1), any reply brief must be served within fourteen (14) days of the opposition.

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6. Amicus briefs

Vermont superior courts do not routinely accept amicus briefs. An amicus brief in the Vermont Supreme Court may be filed only if accompanied by the written consent of all parties, or by leave of the trial court granted on motion, or at the request of the Supreme Court. See V.R.A.P. 29. The motion for leave to file the amicus brief must identify the interest of the applicant and state the reasons why the brief would be desirable. See id.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

Information received or gathered by a journalist in confidence is entitled to absolute protection and cannot be compelled to be produced in any situation.  12 V.S.A. § 1615(b)(1).  Once a motion to quash is filed and a reporter’s qualified privilege has been asserted for non-confidential information, the party seeking the information bears the burden of demonstrating to the court that it can meet each part of the three-part statutory test to overcome the privilege.  Id. at § 1615(b)(2).  The statute places the burden squarely on “the party seeking the news or information” to establish, “by clear and convincing evidence,” that the test has been met.  Id.  This standard has real teeth.  As the Vermont Supreme Court has explained, “[c]lear and convincing evidence is a ‘very demanding’ standard, requiring somewhat less than evidence beyond a reasonable doubt, but more than a preponderance of the evidence” and is a “heightened burden of proof.”  In re E.T., 2004 VT 111, ¶ 12, 177 Vt. 405, 865 A.2d 416 (Vt. 2004) (emphasis added) (quoting In re N.H., 168 Vt. 508, 512 (Vt. 1998)).  While the clear and convincing evidence standard “does not require that evidence in support of a fact be uncontradicted,” it does require that “the fact’s existence be ‘highly probable.’”  Id. (quoting In re N.H., 168 Vt. at 512).

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B. Elements

For subpoenas seeking non-confidential information from journalists, the Vermont Shield Law requires the party seeking the information to satisfy a three-part statutory test to overcome the privilege.  12 V.S.A. § 1615(b)(2).  The three elements are: (1) the news or information is highly material or relevant to a significant legal issue before the court or other body; (2) the news or information could not, with due diligence, be obtained by alternative means; and (3) there is a compelling need for disclosure.  Id.

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1. Relevance of material to case at bar

The Vermont Shield Law permits compelled disclosure of journalistic materials only where the information sought is “highly material or relevant to a significant legal issue.”  12 V.S.A. § 1615(b)(2).  This is a more stringent standard than the First Amendment reporter’s privilege in Vermont.  State v. St. Peter, 132 Vt. 266, 271, 315 A.2d 254, 256 (Vt. 1974) (information need only be “material and relevant”).

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2. Material unavailable from other sources

The Vermont Shield Law permits compelled disclosure of journalistic materials only where the party seeking information from a journalist demonstrates that all other available sources of the information sought have been exhausted.  12 V.S.A. § 1616(b)(2)(A)(ii).  The statute requires a showing that the evidence requested by the requesting party “could not, with due diligence, be obtained by alternative means.”  Id.

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a. How exhaustive must search be?

There are no reported Vermont cases articulating how exhaustive a search for other information must be before it is found that the information “could not, with due diligence, be obtained by alternative means.”  12 V.S.A. § 1615(b)(2)(A)(ii).  If the information sought is duplicative of other testimony or duplicative evidence on the same issue, it is unlikely that the standard will be satisfied.

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

There are no reported Vermont cases regarding what proof of search the subpoenaing party needs to make.

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c. Source is an eyewitness to a crime

The Vermont Shield Law provides absolute protection for the identity of the source of confidential news or information.  12 V.S.A. § 1615(b)(1)(A)(i).  The statute contains no carve out for eyewitnesses to crimes; thus, in the context of confidential information, the privilege would apply.

Prior to the Vermont Shield Law’s enactment, the Vermont Supreme Court found that no privilege exists under the First Amendment that would protect a journalist from “disclos[ing] evidence of a crime, or evidence that is relevant and material to a criminal investigation, when properly subpoenaed.” In re Inquest Subpoena (WCAX), 2005 VT 103, ¶¶ 20-21, 890 A.2d 1240, 1247 (Vt. 2005) (noting that “a reporter’s investigation of criminal activity is exactly the kind of information Branzburg [v. Hayes, 408 U.S. 665, 708 (1972),] does not allow reporters to shield, absent proof that the investigation is motivated by an illegitimate purpose”).

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3. Balancing of interests

Vermont law reflects “a balancing between the ingredients of freedom of the press and the obligation of citizens, when called upon, to give relevant testimony relating to criminal conduct.”

State v. St. Peter, 132 Vt. 266, 270, 315 A.2d 254, 255 (Vt. 1974); see also Spooner v. Town of Topsham, 2007 VT 98, ¶ 17, 937 A.2d 641, 647-48 (Vt. 2007) (“a proper resolution of the privilege claim must balance any First Amendment interests at stake against the moving party’s demonstrated interest in disclosure”).  The Vermont Shield Law does not contain a balancing test, but the third prong of the test to overcome a reporter’s privilege for non-confidential information requires the requesting party to present clear and convincing evidence that “there is a compelling need for disclosure.”  12 V.S.A. § 1615(b)(2).

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4. Subpoena not overbroad or unduly burdensome

The standards for quashing a subpoena on these grounds are the same as those for quashing a subpoena in any civil or criminal case.

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5. Threat to human life

The Vermont Shield Law does not contain a carve-out for threats to human life. Thus, in such situations, the statute’s absolute protection would apply to confidential information and the statute’s three-prong test would apply for non-confidential information.  Assuming the first two prongs of the statutory test were met for non-confidential information, a threat to human life would likely constitute “a compelling need for disclosure.”  12 V.S.A. § 1615(b)(2).

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6. Material is not cumulative

There are no reported Vermont cases interpreting the Vermont Shield Law’s provision that the information “could not, with due diligence, be obtained by alternative means.”  12 V.S.A. § 1615(b)(2)(A)(ii).  If the information sought is duplicative of other testimony or duplicative evidence on the same issue, it is unlikely that the standard will be satisfied.

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7. Civil/criminal rules of procedure

No rules or reported cases.

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8. Other elements

The Vermont courts consider motions to quash on a case by case basis and have the discretion to consider any information relevant to their determination.

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C. Waiver or limits to testimony

The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).  Other than Spooner v. Town of Topsham, No. 129-7-04, 2006 Vt. Super. LEXIS 24, *19-21 (Vt. Super. Orange County March 14, 2006) (reversed and remanded), there are no Vermont cases discussing the waiver of a journalist’s privilege.  In Spooner, the court held that the reporter did not waive his privilege by publishing part of the information that he gathered or by conducting interviews in the presence of a third party.  Id.  (noting that “waiver of a reporter’s privilege operates differently from waiver of other privileges, because the rationale serves a different function. A journalist’s qualified privilege is designed to protect the overarching public policy of access to information, and not confidentiality for a particular party”) (citation omitted).

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1. Is the privilege waivable?

There are no reported Vermont cases discussing whether the reporter’s privilege may be waived.  The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).

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2. Elements of waiver

a. Disclosure of confidential source's name

There are no reported Vermont cases discussing whether the disclosure of a confidential source’s name would constitute a waiver of the reporter’s privilege.  The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).

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b. Disclosure of non-confidential source's name

There are no reported Vermont cases discussing whether the disclosure of a non-confidential source’s name would constitute a waiver of the reporter’s privilege.  The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).

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c. Partial disclosure of information

The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).  Likewise, in a trial court decision that was ultimately reversed, the court held that the reporter did not waive his privilege by publishing part of the information that he gathered.  Spooner v. Town of Topsham, 2006 Vt. Super. LEXIS 24, *19-21 (reversed and remanded).

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d. Other elements

There are no reported Vermont cases discussing whether the reporter’s privilege may be waived.

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3. Agreement to partially testify act as waiver?

The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).  Arguably, the “publication or dissemination” language of the statute would be broad enough to encompass an agreement to partially testify and thus, would not constitute a waiver.  There are, however, no reported Vermont cases discussing whether an agreement to partially testify would constitute a waiver of the reporter’s privilege.

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VII. What constitutes compliance?

There are no reported Vermont cases identifying what constitutes compliance with a subpoena for information from a journalist.

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A. Newspaper articles

Not addressed.

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B. Broadcast materials

Not addressed.

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C. Testimony vs. affidavits

Not addressed.

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D. Non-compliance remedies

1. Civil contempt

In St. Peter, the Vermont Supreme Court cautioned that “legitimate objections to disclosure based on First Amendment grounds require careful evaluation by the judicial officer before answers are compelled, or the sanctions of fine or imprisonment involved.” St. Peter, 132 Vt. at 271, 315 A.2d at 256. The Reporter’s Notes to the Vermont Rules of Civil Procedure likewise note that because subpoenas do not issue from judicial officers in civil proceedings, “contempt should be very sparingly applied when the non-party witness has been overborne by a party or attorney.” V.R.C.P. 45, Reporter’s Notes -1994 Amendment. Vermont law nonetheless provides an array of sanctions for civil and criminal contempt.

V.R.C.P. 45 states that “[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court for which the subpoena was issued.” V.R.C.P. 45(e).  Adequate excuse is not defined by the rule but exists when a nonparty is asked to travel more than 50 miles from the place of service to the location of the deposition. Id.

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a. Fines

Only compensatory fines or coercive sanctions may be imposed in a civil contempt proceeding. State v. Pownal Tanning Co., 142 Vt. 601, 603, 459 A.2d 989, 990 (Vt. 1983) (requiring proof of loss for compensatory fines or proof that a fine was “purgeable” for coercive fines). “In the context of contempt proceedings, purely prospective fines are not favored in Vermont.”  State v. Gundlah ex rel. Smallheer, 160 Vt. 193, 197, 624 A.2d 368, 370 (Vt. 1993).  However, “civil contempt fines may be imposed in an appropriate circumstance either to compensate complainants or as a coercive sanction. When a prospective fine is imposed as a coercive sanction, the fine must be purgeable — that is, capable of being avoided through adherence to the court’s order. Further, the situation must be such that it is easy to gauge the compliance or noncompliance with an order.” Mann v. Levin, 2004 VT 100, ¶ 32, 177 Vt. 261, 273, 861 A.2d 1138, 1149 (Vt. 2004) (quoting Vermont Women’s Health Ctr. v. Operation Rescue, 159 Vt. 141, 151, 617 A.2d 411, 417 (Vt. 1992)).

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b. Jail

Vermont law authorizes a jail sentence for a “party” who violates an order made against him or her in a case pending in a Vermont superior court. 12 V.S.A. §§ 122-123. The Vermont Supreme Court has held that the statute’s reference to “party” does not preclude a court from punishing for contempt persons who are not actually parties to the case. Horton v. Chamberlain, 152 Vt. 351, 354, 566 A.2d 953, 954 (Vt. 1989). Imprisonment must be in a correctional facility maintained by or for the state, 12 V.S.A. § 123(a), and any person so imprisoned, in addition to any other legal right and remedies available to them, is entitled to annual review of the contempt proceedings. 12 V.S.A. § 123(b).

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2. Criminal contempt

V.R.Cr.P. 17(g) provides that: “Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.” Contempt proceedings may be brought under 12 V.S.A. §§ 122-23. “Criminal contempt proceedings are governed by Vermont Rule of Criminal Procedure 42, which is ‘virtually identical to Federal Rule 42.’ . . . . Rule 42(b) provides for notice and hearing, trial by jury, and trial before a different judge if the charge involves ‘disrespect to or criticism of a judge.’” In re Duckman, 2006 VT 23, ¶ 24, 898 A.2d 734, 746 (2006) (quoting V.R.Cr.P. 42 – Reporter’s Notes). These proceedings are in addition to the statutory criminal penalty of 13 V.S.A. § 6603 which provides that “[a] person legally summoned to attend a court in this state to testify in a criminal case, who willfully or wrongfully refuses to attend and testify, shall be fined not less than $10.00 nor more than $100.00 or imprisoned not more than six months, or both.” 13 V.S.A. § 6603.

Vermont also has an aiding and abetting statute which provides that “[a] person who knowingly and wrongfully counsels, aids or assists a person so summoned to testify, to absent himself or herself from attendance before such court, shall be fined not more than $50.00 nor less than $10.00.” 13 V.S.A. § 6604.

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3. Other remedies

Vermont law does not authorize any additional penalties for civil or criminal contempt.

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VIII. Appealing

A. Timing

A notice of appeal from an order or decision of a Vermont court must be filed within 30 days of the date the judgment or order was entered, except an appeal by the state in a criminal case must be taken within seven business days of the entry of the judgment or ordered appealed from. V.R.A.P. 4(a). The notice of appeal is filed with the clerk of the superior court which issued the judgment or order which is being appealed.

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1. Interlocutory appeals

Interlocutory appeals are permissible under Vermont law when a controlling question of law is presented, there is a substantial ground for a difference of opinion, and an immediate appeal may materially advance the resolution of the litigation. State v. Pelican, 154 Vt. 496, 501, 580 A.2d 942 (Vt. 1990); V.R.A.P. 5(b) and 5.1. The Vermont Supreme Court granted interlocutory review of the superior court’s decision to quash a subpoena to a reporter in Spooner v. Town of Topsham, 2007 VT 98, ¶ 4, 937 A.2d 641 (Vt. 2007).

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2. Expedited appeals

A party may request an expedited appeal by filing a motion with the Vermont Supreme Court (an original and one copy of the motion must be filed) explaining why an expedited appeal is warranted. V.R.A.P. 27(d)(2). The opposing party must be sent a copy of the motion when it is filed. Examples of possible grounds for an expedited appeal include a pending contempt order, a pending criminal trial and a pending discovery request such as a subpoena with regard to which a protective order has been sought and denied.

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B. Procedure

1. To whom is the appeal made?

All appeals in Vermont are made to the Vermont Supreme Court.

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2. Stays pending appeal

A stay pending appeal is automatic in Vermont except for certain family law proceedings, for final injunctions, for felony convictions, and for criminal convictions for misdemeanors involving an act of violence against another person.  V.R.C.P. 62(d)(1), V.R.Cr.P. 38(a), V.R.F.P. 12(d)(1).  A request for a discretionary stay of a judgment, sentence or order pending appeal must ordinarily first be made to the lower court.  V.R.A.P. 8(a)(1).   If that is not practicable or the lower court has already denied a request for a stay, a request for a stay may be filed with the Supreme Court or to a single justice of that court. V.R.A.P. 8(a)(2). The motion for a stay must state why application was not made to the lower court or if it was, why relief was denied. Id.  The motion must also show the reasons for the relief requested and the facts relied upon, and if such facts are subject to dispute, the motion must be supported by affidavits or other sworn statements. Id.

With regard to a civil or criminal contempt order against a reporter, a stay will be automatic pending appeal. An order or decision compelling the attendance of a reporter at trial is likely to be deemed injunctive in nature and an interlocutory appeal will be necessary. A stay is not automatic for an interlocutory appeal from an order suspending, modifying, restoring or granting an injunction, V.R.A.P. 8(a), and thus a motion for a stay, pursuant to the procedures set forth above, must be filed. In such instances, a bond or other security may be required to be posted as a condition of the stay. V.R.A.P. 8(b).

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3. Nature of appeal

Appeals to the Vermont Supreme Court of questions of law, such as the existence and scope of the reporter’s privilege, are reviewed de novoState v. Stern, 2018 VT 36, ¶ 5, 186 A.3d 1099, 1102 (Vt. 2018).  However, factual issues are not, and the appellate court will examine the record and proceedings below and determine whether the court’s findings below are “clearly erroneous” or constitute an “abuse of discretion.”  Kneebinding, Inc. v. Howell, 2018 VT 101, ¶ 26 (Vt. 2018).

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4. Standard of review

The Vermont Supreme Court has not articulated a special standard of review for media cases. Accordingly, the general standard of appellate review will apply. Issues of law are reviewed de novoState v. Stern, 2018 VT 36, ¶ 5, 186 A.3d 1099, 1102 (Vt. 2018).  In a non-jury case, findings of fact will be overturned only if “clearly erroneous.” Kneebinding, Inc. v. Howell, 2018 VT 101, ¶ 26 (Vt. 2018).  A court’s exercise of discretion will be set aside only if it rises to the level of an “abuse of discretion.”  Id.

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5. Addressing mootness questions

Under the mootness doctrine, an individual’s stake in the litigation must continue throughout the entirety of the proceedings including during the pendency of an appeal. In re J.S., 139 Vt. 6, 14, 420 A.2d 870, 874 (Vt. 1980). This is because the Vermont Supreme Court may not issue advisory opinions. Id.

In State v. Tallman, 148 Vt. 465, 469, 537 A.2d 422, 424 (Vt. 1987), the Vermont Supreme Court recognized an exception to the mootness doctrine for a narrow class of cases that are “capable of repetition, yet evading review.” The applicability of this exception is dependent upon the satisfaction of a two-part test established by the U.S. Supreme Court in Weinstein v. Bradford, 423 U.S. 147, 149 (1975). First, the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration; and second, there must be a reasonable expectation that the same complaining party will be subjected to the same action again. Skaskiw v. Vt. Agency of Agric., 2014 VT 133, ¶ 35, 112 A.3d 1277, 1290-1291 (Vt. 2014).  Accordingly, if a reporter’s testimony is no longer sought, the mootness doctrine would preclude appellate review unless the reporter was able to show that he or she reasonably expected to be subpoenaed again with regard to the same issue. This could occur when there are concurrent state and federal proceedings and the reporter’s testimony is sought in both.

In State v. Gundlah, 160 Vt. 193, 196, 624 A.2d 328, 370 (Vt. 1993), the Vermont Supreme Court refused to consider whether a trial court improperly rejected a reporter’s qualified privilege because the criminal trial at which she refused to testify was no longer pending as the defendant had pled no contest to the charges against him. The court found that “[a] repetition of the fact pattern presented seems highly unlikely and certainly does not rise to a reasonable expectation.” Id.

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6. Relief

The Vermont Supreme Court may affirm, reverse or remand the decision of the lower court.

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IX. Other issues

A. Newsroom searches

Vermont has no reported cases involving newsroom searches.

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B. Separation orders

Vermont has no reported cases involving separation orders.

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C. Third-party subpoenas

The Vermont Shield Law extends the reporter’s privilege to “a person other than a journalist,” where a subpoena seeks “news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information” pursuant to the statute.  12 V.S.A. §§ 1615(b)(1)(B), 1615(b)(2)(B).  This applies to both confidential and non-confidential information.  Id.

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D. The source's rights and interests

There are no reported Vermont cases discussing the source’s rights and interests.

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