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In Re: Death Investigation of Jeffrey Alan Skjervold: DATA | 1ST AMENDMENT - news reporters privilege; seeking info for criminal case

STATE OF MINNESOTA
IN COURT OF APPEALS
A07-678
In Re: Death Investigation of Jeffrey Alan Skjervold
Ross E. Arneson, in his capacity
as Blue Earth County Attorney, petitioner,
Respondent,
vs.
Daniel Edward Nienaber, et al.,
Appellants.
Filed December 24, 2007
Reversed
Dietzen, Judge
Blue Earth County District Court
File No. 07-CV-07-168
Mark R. Anfinson, Lake Calhoun Professional Building, 3109 Hennepin Avenue South,
Minneapolis, MN 55408 (for appellants Daniel Edward Nienaber, et al.)
Ross E. Arneson, Blue Earth County Attorney, Patrick R. McDermott, Susan B. DeVos,
Assistant County Attorneys, 410 South Fifth Street, P.O. Box 3129, Mankato, MN
56002-3129 (for respondent Ross E. Arneson)
John P. Borger, Faegre & Benson, L.L.P., 2200 Wells Fargo Center, 90 South Seventh
Street, Minneapolis, MN 55402; and
Lucy A. Dalglish, 1101 Wilson Boulevard, Suite 1100, Arlington, VA 22209 (for amici
curiae Minnesota Broadcasters, Minnesota Joint Media Committee, Minnesota
Newspaper Association, Reporters Committee for Freedom of the Press, Star Tribune
Company)
2
Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Huspeni,
Judge.*
S Y L L A B U S
1. The Minnesota Free Flow of Information Act, Minn. Stat. 595.021-.025
(2006), provides to the news media a substantial privilege not to reveal sources of
information or disclose unpublished information except as required under the statute.
2. Under Minn. Stat. 595.024, subd. 2 (2006), an applicant seeking specific
information from the news media relevant to a gross misdemeanor or felony must
establish by clear and convincing evidence all three criteria of the subdivision. The third
criterion requires that the applicant establish that there is a compelling and overriding
interest requiring disclosure of the information to prevent an injustice.
O P I N I O N
DIETZEN, Judge
Appellants challenge the district court order and resulting judgment compelling
them to divulge information regarding the investigation into the death of Jeffrey
Skjervold, arguing that the district court erred in concluding that respondent had met the
criteria for disclosure under Minn. Stat. 595.024, subd. 2 (2006). Because we conclude
that the district court erred in applying the law, we reverse.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, 10.
3
FACTS
In December 2006, Jeffrey Skjervold was involved in a domestic dispute at his
home in rural Blue Earth County. Law enforcement was called, a stand-off ensued, and
Skjervold barricaded himself in his home. During the stand-off, Skjervold shot and
injured two law enforcement officers; and he was shot and injured by a law enforcement
officer.
Law enforcement negotiators contacted Skjervold by telephone in an attempt to
peacefully resolve the stand-off. The negotiators learned that Skjervold was upset
because appellant Daniel Nienaber, a reporter from the Free Press, a Mankato daily
newspaper, had contacted him during the stand-off. Bureau of Criminal Apprehension
(BCA) agent Robert Nance talked with appellant Joe Spear, editor of the Free Press, and
requested that the newspaper abandon its efforts to contact Skjervold. Eventually Spear
agreed to abandon further efforts to contact Skjervold. Skjervold later took his own life.
The next day, the Free Press published an article by appellants Daniel Nienaber
and Nicholas Hanson that contained information obtained by Nienaber during his
conversation with Skjervold. Shortly thereafter, respondent Blue Earth County Attorney
served appellants with an application under Minn. Stat. 595.024 (2006), requesting that
the district court issue subpoenas to compel disclosure of the contents of the conversation
with Skjervold. The application included an affidavit from Micheal Anderson, a special
agent with the BCA.
4
Following a hearing, the district court granted the application, over appellants
objection, concluding that all of the criteria set forth in Minn. Stat. 595.024, subd. 2,
had been met. This appeal follows.
ISSUE
Did the district court err in concluding that respondent satisfied the criteria for
disclosure under Minn. Stat. 595.024, subd. 2 (2006)?
ANALYSIS
Appellants argue that the district court erred in its interpretation of the statute and
in concluding that respondent had satisfied the criteria in Minn. Stat. 595.024, subd. 2
(2006). Statutory construction is a question of law, which we review de novo.
Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).
When interpreting a statute, our purpose is to determine the intent of the legislature.
State v. Larivee, 656 N.W.2d 226, 229 (Minn. 2003). Further, [e]very law shall be
construed, if possible, to give effect to all its provisions. Minn. Stat. 645.16 (2006).
We review a district courts conclusions of law de novo. Modrow v. JP Foodservice,
Inc., 656 N.W.2d 389, 393 (Minn. 2003). Findings of fact of the district court are not set
aside unless clearly erroneous, and we give due regard to the opportunity of the district
court to judge the credibility of the witnesses. See Minn. R. Civ. P. 52.01.
The Minnesota Free Flow of Information Act, Minn. Stat. 595.021-.025 (2006),
confers upon the press the benefit of a substantial privilege not to reveal sources of
information or to disclose unpublished information except as set forth in applicable
provisions of the statute, so as to insure and perpetuate, consistent with the public
5
interest, the confidential relationship between the news media and its sources. Minn.
Stat. 595.022. Minn. Stat. 595.024 sets forth the procedure for applying to the district
court to seek disclosure of unpublished information from the news media. Subdivision 2
provides that the application shall be granted only if the court determines, after hearing
from the parties, that the applicant has met three conditions, or criteria, by clear and
convincing evidence. Minn. Stat. 595.024, subd. 2. Those criteria are
(1) that there is probable cause to believe that the specific
information sought (i) is clearly relevant to a gross
misdemeanor or felony, or (ii) is clearly relevant to a
misdemeanor so long as the information would not tend to
identify the source of the information or the means through
which it was obtained, (2) that the information cannot be
obtained by alternative means or remedies less destructive of
first amendment rights, and (3) that there is a compelling and
overriding interest requiring the disclosure of the information
where the disclosure is necessary to prevent injustice.
Id.
Initially, appellants argue that the district court erred in not dismissing the
application prior to the hearing on the ground that respondent failed to make a showing of
probable cause under the statute. We disagree.
The statute does not require that the district court make a preliminary evaluation of
the merits or consider dismissing the application sua sponte. Appellants concede that
they did not bring a motion to dismiss. See Minn. R. Civ. P. 12.02. Thus, appellants
argument lacks merit. We turn to an examination of each criterion under the statute.
First, the statute requires that the information sought is clearly relevant to a gross
misdemeanor or felony. Minn. Stat. 595.024, subd. 2(1)(i). Appellants argue that the
6
information sought must be relevant to an actual prosecution of a crime, that Skjervold is
deceased and cannot be prosecuted and, therefore, that the criterion is not satisfied. The
district court rejected appellants argument, concluding that the information sought is
clearly relevant to felony violations of law committed by Skjervold. We agree.
The statute does not explicitly require that the gross misdemeanor or felony be
actually prosecuted. Had the legislature intended to require that the information sought
be clearly relevant to a gross misdemeanor or felony that was actually prosecuted, it
could have provided such a requirement in the statute. But it did not. Thus, we conclude
that the statute only requires that the specific information sought be clearly relevant to
a gross misdemeanor or felony. Id.
Second, the statute requires that the specific information sought cannot be
obtained by alternative means or remedies less destructive of First Amendment rights.
Minn. Stat. 595.024, subd. 2(2). The district court found that the information is only
available through the Free Press reporter because Skjervold is dead and there are no
phone company records available. On this record, the district courts finding is not
clearly erroneous. Thus, the second criterion is also satisfied.
Third, the statute requires that there is a compelling and overriding interest
requiring the disclosure of the information where the disclosure is necessary to prevent
injustice. Minn. Stat. 595.024, subd. 2(3). Appellants suggest that the language of the
statute is very broad and, therefore, susceptible of differing interpretations.
We agree that the language of the statute is broad, but we do not agree that it is
ambiguous. We read the statute to require that the applicant establish a compelling and
7
overriding interest requiring the disclosure of the information to prevent an injustice.
Id. What constitutes an injustice will depend upon the facts and circumstances of the
particular case.
Respondent argued and the district court agreed that disclosure is necessary to
fully understand the events leading up to Skjervolds suicide, and that doing so would
prevent injustice. We disagree. The county attorney has the responsibility, among other
things, to prosecute crimes and represent the county in civil matters. But the county
attorney does not argue that it needs the information for any official purpose, such as
investigating potential charges against appellants or a law enforcement officer. See
Minn. Stat. 388.01-.25 (2006). Essentially, the county attorney argues that it needs to
conduct discovery to find an injustice, but declines to connect the discovery to a
particular injustice. We conclude that the statute requires that the particular injustice be
identified. Here, the county attorney has failed to do so and, therefore, the statute has not
been satisfied.
Amici curiae argue that the act does not allow for any disclosure, including an incamera
review by the district court, unless the applicant has satisfied the requirements of
Minn. Stat. 595.024, subd. 2. Because it is not necessary for us to reach the issue of
whether an in-camera review by the district court is permissible under the statute, we
decline to reach that issue.
D E C I S I O N
Because respondent did not establish by clear and convincing evidence that there
is a compelling and overriding interest requiring disclosure to prevent an injustice, the
8
district court erred in concluding that respondent satisfied the requirements of Minn. Stat.
595.024, subd. 2 (2006).
Reversed.
 

 
 
 

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