To Be Argued By: CHRISTOPHER T.

HANDMAN (of the bar of the District of Columbia and State of Maryland) By permission of the Court. Time Requested: 15 Minutes APL-2013-00239 New York County Clerks Case No. 30037/13

Court of Appeals
STATE OF NEW YORK

In the Matter of the Application of JAMES HOLMES, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena Directing Jana Winter to Appear as a Witness, etc., against JANA WINTER, Respondent-Appellant.

REPLY BRIEF FOR RESPONDENT-APPELLANT

DORI ANN HANSWIRTH THERESA M. HOUSE NATHANIEL S. BOYER BENJAMIN A. FLEMING HOGAN LOVELLS US LLP 875 Third Avenue New York, New York 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 CHRISTOPHER T. HANDMAN SEAN M. MAROTTA HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Telephone: (202) 637-5719 Facsimile: (202) 637-5910 October 7, 2013 Attorneys for Respondent-Appellant

TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ...............................................................................1 ARGUMENT .............................................................................................................4 I. THE SUBPOENA SHOULD BE QUASHED BECAUSE IT IS CONTRARY TO NEW YORKS STRONG PUBLIC POLICY OF PROTECTING JOURNALISTS CONFIDENTIAL SOURCES .......................................................................................................4 A. The Fact That No Statute Expressly Exempts Reporters From Subpoenas Under CPL 640.10 Simply Poses Rather Than AnswersThe Question Whether New Yorks Public Policy Forecloses Subpoenas Calling For Confidential Sources .............................................................................5 CPL 640.10s Comity-Based Provisions Cannot Trump The Shield Laws Strong Public Policy Of Protecting Journalists Confidential Sources........................................................11 Codey Does Not Control This Case ....................................................17 That Winter Gathered News While In Colorado Makes No Analytical Difference ....................................................................20

B.

C. D. II.

THE SUBPOENA SHOULD BE QUASHED BECAUSE ITS DEMAND THAT WINTER BURN HER SOURCES IMPOSES AN UNDUE HARDSHIP ON HER..............................................................24 A. Holmes New Factual Arguments About The Harm To Winter Are Waived And Beyond This Courts Jurisdiction To Consider .........................................................................................25 Forcing A Reporter To Reveal Her Confidential Sources Is An Undue Hardship On The Reporter And The Public ......................28

B.

CONCLUSION........................................................................................................31

TABLE OF AUTHORITIES Page CASES: Banco Nancional de Mexcio, S.A. v. Societe Generale, 34 A.D.3d 124 (1st Dept 2006) ...................................................................13, 14 Barry E. (Anonymous) v. Ingraham, 43 N.Y.2d 87 (1997) ...........................................................................................14 Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355 (2003) ...................................................................................26, 27 Blitz v. Beth Isaac Adas Israel Congregation, 720 A.2d 912 (Md. 1998) ...................................................................................13 Colorado v. Arellano-Avila, 20 P.3d 1191 (Colo. 2001)..................................................................................15 Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Jul. 2, 2013) .....................................................28 Constantine v. White, 166 A.D.2d 59 (2d Dept 1991)..........................................................................12 Ehrlich-Bober & Co. v. Univ. of Houston, 49 N.Y.2d 574 (1980) .............................................................................13, 14, 15 F.A. Straus & Co. v. Canadian Pac. R. Co., 254 N.Y. 407 (1930) .......................................................................................9, 16 Fisher v. Star Co., 231 N.Y. 414 (1921) ...........................................................................................27 Gonzales-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) ................................................................................7 Holiday Inns, Inc. v. Olsen, 692 S.W.2d 850 (Tenn. 1985) ............................................................................13 In re Connecticut, 179 Misc. 2d 623 (Nassau Cnty. Ct. 1999) ..................................................17, 18 ii

TABLE OF AUTHORITIESContinued Page Kilberg v. Ne. Airlines, Inc., 9 N.Y.2d 34 (1961) .............................................................................................14 Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151 (1987) ...........................................................................................4 Matter of Beach v. Shanley, 62 N.Y.2d 241 (1984) .........................................................................................25 Matter of Codey v. Capital Cities, Am. Broad. Corp., 82 N.Y.2d 521 (1993) ..................................................................................passim Matter of Walker, 64 N.Y.2d 354 (1985) ..................................................................................passim McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003) ..............................................................................30 Natl Org. for Women v. Metro. Life Ins. Co., 131 A.D.2d 356 (1st Dept 1987) .................................................................11, 12 People v. Hawkins, 157 N.Y. 1 (1899) .............................................................................................5, 7 People v. McCartney, 38 N.Y.2d 618 (1976) .........................................................................................15 Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255 (1923) ...........................................................................................13 Sanders v. Winship, 57 N.Y.2d 391 (1982) .......................................................................................7, 8 Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189 (1985) ...................................................................................14, 22 St. Nicholas Cathedral of Russian Orthodox Church in N. Am. v. Kedroff, 302 N.Y. 1 (1950) .........................................................................................29, 30

iii

TABLE OF AUTHORITIESContinued Page Telaro v. Telaro, 25 N.Y.2d 433 (1969) .........................................................................................27 STATUTES: CPL 640.10 ....................................................................................................passim CPL 640.10(2)................................................................................................passim N.Y. Civ. Rights Law 19-a .................................................................................7, 8 N.Y. Civ. Rights Law 79-h .....................................................................................2 N.Y. Civ. Rights Law 79-h(b) ..............................................................8, 12, 16, 19 N.Y. Dom. Rel. Law 114 ..................................................................................6, 11 N.Y. Est. Powers & Trusts Law 3-1.2 ..................................................................11 N.Y. Stat. Law 124................................................................................................30 N.Y. Stat. Law 397................................................................................................12 RULE: 22 NYCRR 520.11(e)(2).......................................................................................21 CONSTITUTIONAL PROVISIONS: N.Y. Const. art. VI, 3(a)........................................................................................27 U.S. Const. amend. I .........................................................................................passim U.S. Const. amend. VI ...................................................................................3, 14, 15 LEGISLATIVE MATERIALS: Approval Memorandum of Governor Mario M. Cuomo, 1990 N.Y. Legis. Ann. 2693............................................................................................................23 Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis. Ann. 508.......................................................................................22, 23, 24 iv

TABLE OF AUTHORITIESContinued Page OTHER AUTHORITIES: Peter Preiser, Practice Commentary, McKinneys Cons. Laws of N.Y., Book 11A, Crim. Proc. 640.10..................................................................................17 Margaret Valentine Turano, Practice Commentary, McKinneys Cons. Laws of N.Y., Book 17B, Est. Powers & Trusts 3-1.2...............................................11

PRELIMINARY STATEMENT In our opening brief, we demonstrated that New York has a well-defined and dominant public policy against forcing reporters to reveal their confidential sources. Holmes never challenges that showing. And for good reason: As all five justices of the Appellate Division agreed below, the New York Shield Law represent[s] a strong public policy and the long history [in this State] of vigilantly safeguarding freedom of the press. A. 6 (majority); A. 10 (dissent); Opening Br. 27-29. Rather than addressing the most salient point of our brief, Holmes instead spends the bulk of his brief talking about the predicate for the question presented namely, that neither the Shield Law nor CPL 640.10 expressly forecloses a New York court from issuing a subpoena under CPL 640.10 that seeks confidential newsgathering information from a reporter. Proving that uncontested point though merely poses anew the question presented. That is because courts consider public policy only when positive law does not already expressly secure the right being asserted. Thats the whole point of the public-policy doctrine; it ensures that the machinery of the courts is not available to those who seek results that offend this States paramount policies. Matter of Walker, 64 N.Y.2d 354, 361 (1985). Of course, Holmes is not the first person to suggest that public policy should extend no further than the express language of this States statutes and Constitution. The dissenting judge in Walker likewise insisted that, [w]here there exist

governing constitutional or statutory provisions, they delineate the outer boundaries of what is the public policy of this State. Id. at 362 (Jasen, J., dissenting). But the opinion of this Court took a decidedly more expansive view. It held that an act is contrary to public policy, not only if it directly violates a statutory prohibition, as the dissent suggests, but also if it is contrary to the social judgment on the subject implemented by the statute. Id. at 359. Holmes brief which curiously never cites or discusses Walkerthus seeks to relitigate a foundational issue that this Court squarely resolved nearly 30 years ago. With that brush cleared, this case becomes a straightforward application of Walker and the settled public-policy doctrine. The social judgment of the Legislature embodied by the Shield Law is that reporters should not be compelled to reveal their confidential sources in judicial proceedings in any court. Id.; N.Y. Civ. Rights Law 79-h. The subpoena in this case violates that judgment and should be quashed as contrary to public policy, even if the subpoena does not directly violate[] the Shield Law. Walker, 64 N.Y.2d at 361. Unable to join issue with settled principles of public policy, Holmes argument ends up being less doctrinal and more autobiographical. As he sees things, New York just cant possibly recognize a strong public policy against forcing its reporters to reveal their confidential sources in other States because that would prejudice his ability to mount a defense back in Colorado. But Holmess

solipsistic argument misses an important point: no criminal defendant who stands trial in New Yorks courts is able to compel a reporter to reveal her confidential sources because the Shield Law categorically immunizes reporters from such compulsion. And yet New York still manages to provide its defendants with procedurally fair trials. In any event, Holmes invocation of his constitutional trial rights rings particularly hollow because both this Court and the Supreme Court of his home state of Colorado have squarely held that a criminal defendant has no constitutional rightSixth Amendment or otherwiseto compel witnesses to appear across state lines. Finally, even Holmes himself cannot embrace the majoritys holding below that the career-ending harms a reporter faces from having to reveal her sources are irrelevant to the undue hardship analysis under CPL 640.10(2). Instead based on self-selected anecdotesHolmes soothingly assures the Court that revealing a reporters confidential sources imposes not the slightest inconvenience on a reporter. But this novel theory is making its first appearance in this Court, so it is waived. It is also demonstrably wrong. For proof, this Court need go no further than the legislative history of the Shield Law. Report after report confirms that the Legislature understood what is obvious to everyone but Holmes: that subpoenaing a reporter to burn her confidential sources willinvariablychill press freedom and jeopardize that reporters career.

ARGUMENT I. THE SUBPOENA SHOULD BE QUASHED BECAUSE IT IS CONTRARY TO NEW YORKS STRONG PUBLIC POLICY OF PROTECTING JOURNALISTS CONFIDENTIAL SOURCES. Holmes does not disagree with the Appellate Divisions holding that New Yorks Shield Law represents a strong public policy and the long history of vigilantly safeguarding freedom of the press. A. 6. Nor does Holmes dispute our showing that in the Shield Law, the Legislature weighed the free-speech benefits of providing robust protections to the media against the inconvenience to litigants in the judicial system and concluded that the former outweighed the latter. Opening Br. 27-28 (citing Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151, 155 (1987)). Indeed, Holmes even concedes that the New York Shield Laws policy of absolute protection for journalists confidential sources is far stronger than Colorados porous and qualified privilege covering that information. See Holmes Br. 14. Instead, Holmes pushes two interrelated assertions. First, Holmes argues that because the Shield Law does not explicitly cross-reference CPL 640.10 or otherwise textually carve out a protection for reporters against out-of-state subpoenas, New Yorks public policy cannot extend that far. Second, Holmes asserts that because CPL 640.10 embodies a legislative decision to accord comity to other states requests for New York witnesses, that comity-based public policy

necessarily trumps any contrary public policy of media protection in the Shield Law. The first argument is squarely refuted by Matter of Walker, 64 N.Y.2d 354 (1985)a case central to our opening brief, Opening Br. 31-33, but curiously absent from Holmes. The second argument wilts under this Courts cases regarding comity and canons of construction. Neither can sustain the Appellate Divisions decision. A. The Fact That No Statute Expressly Exempts Reporters From Subpoenas Under CPL 640.10 Simply PosesRather Than AnswersThe Question Whether New Yorks Public Policy Forecloses Subpoenas Calling For Confidential Sources.

Holmes takes a dim view of New York public policy. As he sees it, public policy is limited to the express terms of New York statutes; courts therefore may not consider the larger public policies embodied in those statutes. Holmes Br. 1519. Holmes, however, relies on only one casePeople v. Hawkins, 157 N.Y. 1 (1899)to support his parsimonious view of public policy. The problem is that Hawkins says no such thing. What it does say is that New Yorks public policy is not an invention of individual judges consciencesit must instead be premised on the Constitution, statutes, or prior judicial decisions. Id. at 12. There is nothing controversial about that; we cited Hawkins for the same point in the opening brief. Opening Br. 31. But it is quite a leap from that to say, as Holmes does, that the public policy of New York is strictly limited to the four corners of its Constitution, statutes, and 5

prior judicial decisions. More importantly, this Court squarely rejected that exact view in Walker. Recall that in Walker this Court held that a decedent could not devise to his adopted children their adoption decrees because that would violate New Yorks public policy of keeping adoption-related records strictly confidentiala public policy expressed by Domestic Relations Law 114. 64 N.Y.2d at 360-361. If Holmes is right, Walker was wrongly decided. After all, this Court admitted that Domestic Relations Law 114 did not apply by its terms to the outof-state adoption decrees that the decedent sought to devise; the statute prohibits disclosure of only New York adoption records and contains no language suggesting it extends to such records from other states courts. Id. Under the rule Holmes urges, that alone should have foreclosed this Court from recognizing a public policy in Walker. For in his view, New York public policy is perfectly coextensive with New York positive law: Unless the Legislature or the Constitution expressly addresses a question, no larger public policy can ever provide an answer. And since there was no positive-law prohibition in any statute that specifically mandated that a New York court preserve the secrecy of other states adoption records, this Courtunder the Holmes viewnever should have trumped the decedents will by resorting to public policy.

That was precisely the argument pressed by the dissent in Walker. But the majority explicitly rejected this cramped view of public policy, holding that a testamentary gift can violate public policy when it is contrary to the social judgment on the subject implemented by [a] statute, not just when it expressly violates a provision of positive law. Id. at 355. And it is not as if the Walker majority was unaware of Hawkins; it quoted Hawkins for the proposition that [w]hen we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records. Id. at 359 (quoting Hawkins, 157 N.Y. at 12). We explained all this in our opening brief. Opening Br. 31-33. Yet Holmes does not distinguish, discuss, or even cite Walker in his. We presume that Holmes proffers no response because he has none. Cf. Gonzales-Servin v. Ford Motor Co., 662 F.3d 931, 934 (7th Cir. 2011) (Posner, J.) ( The ostrich-like tactic of pretending that potentially dispositive authority against the litigants contention does not exist is as unprofessional as it is pointless. ) (citation omitted). Nor does Walker stand alone. In Sanders v. Winship, 57 N.Y.2d 391 (1982), this Court construed the reach of Civil Rights Law 19-a, which forbids a co-op and its members from unreasonably withholding consent to the sale of a co-op interest based on the purchasers national origin. An Israeli family was denied permission to purchase shares in the co-op, alleging their denial was caused by the

animus of one shareholders wife. Id. at 394-395. Under the literal terms of the statute, the spouse of a shareholder is not a party who could withhold consent to a sale because she has no shares to vote. Id. at 395-396. But recognizing that the antidiscrimination provisions of Section 19-a were expressive of fundamental State policy, the Court held that the statute prohibited discrimination by those in a position to influence a shareholder, so as to prevent circumvent[ion] of the States public policy against discrimination in housing. Id. at 395, 396-397. Thus, to vindicate this States paramount public policy against discrimination, this Court applied Section 19-a to a set of facts that positive law itself did not reach. That is how public policy works. And applying that settled approach here confirms that the dissent below had it right: To issue a subpoena to a New York journalist calling for her to reveal her confidential sources on pain of contempt is contrary to the social judgment on the subject implemented by the Shield Law. See Walker, 64 N.Y.2d at 359. There is no question what this States social judgment is on the question whether to compel journalists to burn their confidential sources. The Shield Law categorically immunizes any professional reporter from having to reveal her sources under any circumstances. Supra 4; see also Opening Br. 27-29. The Shield Law is written broadly; it applies [n]otwithstanding the provisions of any general or specific law to the contrary, and the Legislature intended it to apply in any court. N.Y. Civ. Rights Law 79-h(b). The Supreme

Courts subpoena is contrary to the social judgment embodied in the Shield Law because it compels Winter to reveal the identities of her confidential sources. Opening Br. 35-39. Unableand certainly unwillingto distinguish Walker, Holmes trots out another reason why positive law matters here. As he sees things, this Court may not invoke New Yorks public policy against compelling journalists to burn their sources here because the Legislature did not expressly carve out such an exception when it enacted CPL 640.10(2). Holmes Br. 17-19. But that again does not answer the public-policy question in this case; it simply poses it. After all, in every case implicating the public-policy doctrine, some lawwhether positive law or common lawdictates a result that differs from the public policy being urged. Otherwise there would be no need to consult public policy. That is why this Court in Walker and Sanders looked past what positive law did or did not expressly provide. This Court should follow that well-worn path here again. Holmes breathless claim, then, that our rule would have this Court carve out an exception for reporters, Holmes Br. 24, is both false and overwrought. It is false because this Court would not be carving out an exception at allthe Legislature has already done so. All this Court will do by quashing the subpoena is what it is required to do and has done for decades: give effect to the Legislatures public policy choices. F.A. Straus & Co. v. Canadian Pac. R. Co.,

254 N.Y. 407, 413-414 (1930). And Holmes fears are overwrought because the Legislature has already carved out an exception for reporters subpoenaed to testify in New York proceedings. All this Court must do is confirm that the Legislatures absolute protections for journalists are truly absolute. Holmes take on how CPL 640.10 limits the reach of New York public policy does more than upset precedent; it defies common sense. Consider this hypothetical: A New York journalist writes a story about mob-controlled activities in New York and Illinois based largely on the confidential reports of former mob members. If defense counsel for a suspected mobster charged with corruption by the Manhattan D.A. wanted to compel the reporter to reveal her confidential sources, a New York court would be categorically barred from doing so thanks to the States absolute Shield Law. But if a mobster indicted in Chicago wanted to compel the reporter to reveal her sources there, that same New York courtunder Holmes theorywould have no choice but to issue a subpoena under CPL 640.10 to force that reporter to travel to Illinois, where she might be forced to reveal her confidential sources. That makes no sense. Why should a litigant in another States court system have the power to conscript New York courts into forcing reporters to reveal their confidential sources, when the public policy of this State categorically forecloses the same New York court from requiring a reporter to reveal her sources at the request of a New York litigant involved in a New York

10

case? Holmes offers no rational reason why the States public policy would countenance such a curious result. B. CPL 640.10s Comity-Based Provisions Cannot Trump The Shield Laws Strong Public Policy Of Protecting Journalists Confidential Sources.

Holmes next asserts that CPL 640.10(2) trumps the Shield Law because the Legislature expressly approved the public policy of comity underlying CPL 640.10. Holmes Br. 22-24. He is wrong. And Walker proves it again. There, this Court noted the general rule that the law permits a person possessing testamentary capacity to dispose of property to any person in manner and for any object or purpose. 64 N.Y.2d at 357. That general rule arises from EPTL 3-1.2, which provides that [e]very estate in property may be devised or bequeathed and is a statutory statement of New Yorks strong policy favoring freedom of testation. Margaret Valentine Turano, Practice Commentary, McKinneys Cons. Laws of N.Y., Book 17B, Est. Powers & Trusts 3-1.2. But despite this explicit statutory statement and the strong public policy attached to it, the Walker Court still concluded that the public policy expressed in Domestic Relations Law 114 overcame it. 64 N.Y.2d at 360. That result should not come as a surprise. [I]t is well recognized that a special statute in irreconcilable conflict with a general statute covering the same subject matter is controlling insofar as the special act applies. Natl Org. for

11

Women v. Metro. Life Ins. Co., 131 A.D.2d 356, 358 (1st Dept 1987); see also Constantine v. White, 166 A.D.2d 59, 62 (2d Dept 1991) (noting the well-settled rule of statutory construction that the general provisions must yield to the specific in event of conflict); N.Y. Stat. Law 397 (A special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies.). Here, Holmes is correct that CPL 640.10(2) states a general rule that New York courts should compel New York citizens to appear in out-of-state criminal proceedings when the statutes procedural and substantive criteria are satisfied. Holmes Br. 15. But the strong public policy underlying the Shield Law states a specific exception to the general rule: in order to ensure a free and unfettered media, New York courts are forbidden from issuing a subpoena that compels a reporter to appear and reveal her sources in a state that does not recognize an absolute privilege for reporters confidential sources. Supra 4. And under settled rules of construction, the specific exception in the Shield Law takes precedence over the general rule in CPL 640.10. See Natl Org. for Women, 131 A.D.2d at 358. Indeed, the Shield Law explicitly confirms the canon, stating that its protections apply [n]otwithstanding the provisions of any general or specific law to the contrary. N.Y. Civ. R. Law 79-h(b).

12

If the canons of construction were not enough, this Court has already explained how to resolve conflicts between comity and other state public policies. It has repeatedly held that New Yorks public policy must always prevail over comity. Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255, 263 (1923) (emphasis added); see also Opening Br. 22-23 (collecting similar cases). Holmes only answer to those consistent holdings is that the Uniform Act is on a different plane because it is a uniform act. Holmes Br. 23. But this Courts sister courts have long rejected the notion that uniformity of construction should trump a states own public policy. As the Tennessee Supreme Court has explained, state courts do not blindly follow decisions of other states interpreting uniform acts; instead, they only accord comity to those states decisions when they do not antagonize public policy of this state. Holiday Inns, Inc. v. Olsen, 692 S.W.2d 850, 853 (Tenn. 1985); accord Blitz v. Beth Isaac Adas Israel Congregation, 720 A.2d 912, 918 (Md. 1998). That principle accords with this Courts own holdings regarding comity. Opening Br. 22-25. Holmes also insists that our cases regarding the interaction between New Yorks public policy and comity are inapposite because they involved events centered in New York. Holmes Br. 25. For one, Holmes selective refutation of Ehrlich-Bober & Co. v. University of Houston, 49 N.Y.2d 574 (1980), and Banco Nancional de Mexcio, S.A. v. Societe Generale, 34 A.D.3d 124 (1st Dept 2006),

13

ignores our other cases where the relevant conductsuch as the tort or adoption took place in the foreign jurisdiction. Opening Br. 24-25 (citing Kilberg v. Ne. Airlines, Inc., 9 N.Y.2d 34, 40 (1961), and Barry E. (Anonymous) v. Ingraham, 43 N.Y.2d 87, 94-95 (1997)). But more importantly, this Courts rule regarding public policy and comity does not turn on a simple weighing of contacts. As this Court has explained, the public policy exception only comes into play after a contacts-based choice-of-law analysis is resolved in favor of applying the foreign jurisdictions law. Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 202 (1985). Thus, in both Ehrlich-Bober and Banco Nancional, a purely contacts-based approach would have warranted deference to the other jurisdictions laws in the name of comity. But in both cases, New Yorks courts overrode the otherwiseapplicable contacts-based analysis in the name of implementing this States strong public policy of preserving New Yorks role as a global center for national and international business transactions. See Ehrlich-Bober, 49 N.Y.2d at 581-582; Banco Nancional, 34 A.D.3d at 130-131. The same concerns regarding New Yorks role as the media capital of the word apply here. Opening Br. 44-46. Without any favorable precedent on his side, Holmes eventually summons only phantom fears. Holmes Br. 21. Holmes frets that this States absolute public policy protecting New York journalists from having to reveal their confidential sources would compromise his (and others) Sixth Amendment right to compel the

14

appearance of witnesses at criminal trials. Holmes Br. 9, 21. This fear, like all his others, is deeply misplaced. In People v. McCartney, 38 N.Y.2d 618 (1976)a case that Holmes actually cites for a different proposition, Holmes Br. 10, 23this Court held that a State is not constitutionally required by the Sixth Amendment guarantee of compulsory process to compel the attendance of witnesses beyond its jurisdiction over whom it has no subpoena power. Id. at 621. This Court is not alone; the Colorado Supreme Court has said the same thing. See Colorado v. Arellano-Avila, 20 P.3d 1191, 1193 (Colo. 2001). As in McCartney, this caseat least for Holmessimply does not present a question of constitutional dimension. 38 N.Y.2d at 621.1 Holmes grim predictions of chaos if this Court were to give effect to this states strong public policy of protecting reporters confidential sources are likewise more imagined than real. This States public policy forbids a subpoena from issuing under CPL 640.10(2) in only the narrowest of narrow circumstances: where (1) the subpoena is directed to a journalist; (2) the subpoena calls for the journalist to reveal her confidential sources and; (3) the receiving state does not recognize an absolute privilege for journalists confidential sources.
1

For similar reasons, Holmes reliance on this Courts statement that New Yorks public policy might not prevail when the other states asserted interest goes to the heart of the government function, Holmes Br. 25 (quoting Ehrlich-Bober, 49 N.Y.2d at 581), is misplaced. The quoted sentence appliesif at allto statutes that safeguard the public fisc. Ehrlich-Bober, 49 N.Y.2d at 581. Colorados asserted interest in Winters testimony is nothing of that sort. 15

Holmes does not suggest that these facts often arise, so its preposterous to think that honoring New Yorks strong public policy of protecting the media will somehow render the statutory procedure afforded defendants in CPL 640.10(2) illusory. At the risk of repetition: all other New Yorkers will have to appear in out-of-state criminal proceedings when the statutes procedural and substantive criteria are satisfied. But the Legislature chose, after careful consideration, to exempt journalists from having to burn their confidential sources. Holmes may disagree with the Legislatures public policy choice. But this Court has no license to ignore it. See F.A. Straus & Co., 254 N.Y. at 413-414. Holmes concerns about the breakdown of interstate comity under the Uniform Act fall flat for another reason, too. Although New York has a general comity interest in having other states citizens appear as witnesses in New York criminal proceedings, New York has no interestcomity or otherwisein having other states journalists appear as witnesses in New York criminal proceedings in order to reveal their confidential sources. Because such testimony can never be compelled under New York law, N.Y. Civ. Rights Law 79-h(b), New York will suffer no loss if other states refuse to honor New York litigants requests for their journalists when confidential sources are at stake.

16

C.

Codey Does Not Control This Case.

Holmes insists that this Court need not resolve the public-policy question here because Codey already answered it. To hear him tell it, Codey similarly involved a clash between New Yorks absolute privilege for a reporters confidential news information and New Jerseys qualified privilege for the same material and held that the clash was irrelevant. Holmes Br. 11-15. But Holmes notably appends no citation to his revisionist take on Codeys facts. Heres why: His interpretation of this Courts opinion contradicts the text of the opinion itself and the conclusion of every commentator and lower court to analyze the decision. Holmes bases his argument on the false premise that there was a clash of inconsistent privileges presented in Codey. Not so. The majority opinion was premised on the Appellate Divisions finding that the videotape and reporters notes were privileged under both New York and New Jersey law. Matter of Codey v. Capital Cities, Am. Broad. Corp., 82 N.Y.2d 521, 525 (1993) (emphasis added). That is why, as weve explained, every commentator that has analyzed Codey has read it as a case where the demanding state had a law similar to our[s], obviating any need to determine whether New Jerseys qualified privilege offended New Yorks strong public policy. Peter Preiser, Practice Commentary, McKinneys Cons. Laws of N.Y., Book 11A, Crim. Proc. 640.10; see also In re Connecticut, 179 Misc. 2d 623, 628 (Nassau Cnty. Ct. 1999) (Codeys footnote 3

17

applies where a demanding State does not recognize or have similar safeguards to protect the integrity of a fundamental evidentiary privilege recognized in New York); Opening Br. 26. If Holmes is right about Codey, it means every commentator and court to consider the case was wrong. This Court should reject Holmes view. Further, because the source in Codey had already come forward and revealed his identity to the prosecutor who issued the subpoena in question, the case likewise did not present the same conflict with New Yorks policy in favor of protecting the identities of confidential sources that is presented here. In Codey, the player had acknowledged to New Jersey law enforcement authorities that he had been interviewed by respondents reporter. 82 N.Y.2d at 524. ABC never disputed that the player who was cooperating with the grand jury was in fact the source of their report. See generally id. Thus, unlike Winter, ABC Codey never faced even the possibility of being presented with the Hobsons Choice of being forced to reveal the identity of a source against that sources wishes or being subjected to contempt sanctions. In any event, Holmes peculiar slant on Codey gets the law wrong. As Holmes sees it, ABCs outtakes must have been confidential news information because at the time the interview was conducted, the players identity was confidentiala classification that, according to Holmes, did not change when the

18

player came forward and testified before the grand jury because only the reporter and not the source may waive the privilege. Holmes Br. 13-14. But what Holmes ignores is that the Shield Law defines confidential news information in the disjunctive: it is news obtained or received in confidence or the identity of the source of such news. N.Y. Civ. Rights L. 79-h(b) (emphasis added). In Codey, the news the player conveyed was nonconfidential: ABC received the information on the understanding that it would be broadcastpubliclyas part of the report. To be sure, the players identity was confidential, at least initially. But all that the New Jersey prosecutor sought was the nonconfidential news the player conveyed the identity was already revealed by the player himself.2 See Codey, 82 N.Y.2d at 524. The prosecutor did not needand did not seekthe players identity, because the prosecutor already knew it. Codey, in short, is not a case about confidential newsgathering. The most glaring weakness with Holmes reading of Codey, however, is that it fails to account for footnote 3, which expressly contemplated the possibility that in some future case a strong public policy of this State, even one embodied in an evidentiary privilege, might justify the refusal of relief under CPL 640.10. 82

Holmes argues that the privilege provided by the Shield Law cannot be waived by the sources conduct. Holmes Br. 14. But Holmes offers no case for that proposition and, for the reasons explained in text, the Codey Court plainly understood the player to no longer be a confidential source once he elected to cooperate with the New Jersey investigation. 19

N.Y.2d at 530 n.3. If, as Holmes claims, Codey involved a clash between New Yorks strong public policy of protecting confidential sources and another states porous and equivocal one, there would be no need for the footnote. There would literally be no future case in which the question could arise; any case would be resolved by Codey. D. That Winter Gathered News While In Colorado Makes No Analytical Difference.

Holmes final salvo is to argue that because Winters employer sent her to Colorado to gather news about his horrific acts, she has forfeited the protections that New York public policy affords journalists. Holmes Br. 20. But Holmes is wrong on the facts, the law, andmost importantly of allthe public policy at stake. Holmes argument is built on an assumption that Winters sources are two Colorado law enforcement officers and that her sources appear to have committed perjury by testifying at the Colorado December evidentiary hearing that they were not Winters sources. Holmes Br. 2-3. But nothing in the record supports Holmes speculation that Winters sources were Colorado law enforcement officers or that they were among the witnesses that submitted affidavits and testified at the Colorado hearing. As Professor Feldstein explained below, reporters often rely on sources that possess only second- or third-hand knowledge of the information they relate, and it is entirely possible that Winters 20

sources were not in Colorado law enforcement or among those that testified at the hearing. R. 354. Holmes assumption that revealing Winters sources will ferret out misfeasance and perjury among Colorado officers is nothing more than his own hypothesis. But this dispute about who Winters sources are and where they come from is just a distraction. For geography is really irrelevant to Holmes theory. After all, had Winter conducted all her interviews by phone from her New York office, Holmes would still insist he could subpoena her under CPL 640.10. All that matters, as Holmes sees things, is that Winter is a material and necessary witness to a trial taking place in Colorado. The important point is that New Yorks public policy does not turn on accidents of geography; whether the reporter covers a story in Albany or Alabama, no New York court may issue a subpoena that would lead to her having to reveal her confidential sources.3 That is particularly true here. Winter is, after all, a New York resident with a degree from a New York journalism school working in New York for a New York news organization. R. 335-336. Winter did not hide out in New York as Holmes claims. Holmes Br. 21. She came home. And in any event, this Court

Holmes strained analogy to lawyers practicing in multiple jurisdictions is inapt. Holmes Br. 20-21. The practice of law in a court of another state is a privilege, one that the state may condition on submitting to the states disciplinary processes. See, e.g., 22 NYCRR 520.11(e)(2). The First Amendment-protected practice of journalism in other states is not similarly conditional. 21

already has tools at its disposal to stop New York from becoming a refuge for lawless journalists with no other connection to the state: when a case has no connection to New York, New York courts may decline to apply even the States strong public policies. Schultz, 65 N.Y.2d at 203. But that fact pattern is a constellation away from the facts in this case. Besides, as we pointed out in the opening briefand as Holmes does not refutestates have refused to accord comity to other states on public-policy grounds since the earliest days of the Nation. Opening Br. 40-41. Quashing the Supreme Courts subpoena will do no great harm to our Federalism. The deepest flaw with Holmes geographic approach to the Shield Laws public policy, however, is that it blinks at the realities of the modern media and the Legislative judgments embodied in the Shield Law. In a world of cellphones and the Internet, a New York investigative reporter like Winter on assignment in California can talk to a source in Washington, D.C. about a story breaking in Florida. But under Holmes view, the Shield Law ascribes to the old adage that all news is local; it protects only reporters summoned to appear in New York courts, who reported on New York news. Holmes Br. 18-19. That would surprise the Legislatures that passed and strengthened the Shield Law and the Governors who signed those bills. In signing the Shield Law, Governor Rockefeller emphasized that its protections were needed because [a]

22

representative democracy, such as ours, cannot exists unless there is a free press both willing and able to keep the public informed of all the news. Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis. Ann., at 508 (emphasis added); accord Approval Memorandum of Governor Mario M. Cuomo, 1990 N.Y. Legis. Ann., at 2693 (Shield Law is designed to resolve[] * * * questions in favor of a free and unfettered press). But Holmes would blue-pencil that statement from all the news to just some of the newsNew York journalists who report on national stories are on their own. There is no warrant for that. As Governor Rockefeller also observed, the Shield Law was meant to make New York Statethe Nations principal center of news gathering and disseminationthe only state that clearly protects the publics right to know and the First Amendment rights of all legitimate newspapermen, reporters, and television and radio broadcasters. 1970 N.Y. Legis. Ann., at 508. If New York is to remain the principal center of news gathering and dissemination that Governor Rockefeller and the Legislature envisioned, this Court must necessarily protect New York journalists confidential sources, even when those sources are sought by other states. Finally, although Holmes focuses on Winters choice to report her story from Colorado, he pays virtually no attention to how the public policy underlying the Shield Law protects the public. As Governor Rockefellers approval

23

memorandum emphasizes, the Shield Law does not protect reporters for their own sake. Id. Rather, the protection the Shield Laws public policy affords Winter is there to protect the public by ensuring that reporters like Winter can gather the news that isagain, in Governor Rockefellers wordsessential to [a] representative democracy. Id. Even if Holmes were right that Winter somehow forfeited her personal protections under New Yorks public policy by gathering news while in a different Stateand he is notthe public itself made no such waiver. And the public policy underlying the Shield Law exists for the publics benefit just as much as Winters. See id.4 II. THE SUBPOENA SHOULD BE QUASHED BECAUSE ITS DEMAND THAT WINTER BURN HER SOURCES IMPOSES AN UNDUE HARDSHIP ON HER. Holmes fares no better in defending the Appellate Divisions conclusion that Winter will not suffer an undue hardship from being forced to testify about her sources in Colorado because undue hardship under CPL 640.10(2) is limited to the hardships associated with travel. A. 5. In fact, he doesnt defend that conclusion at all. Insteadcontesting a point he conceded by silence below Holmes argues that Winter will suffer no harm whatsoever from being forced to
4

Holmes denigrates the importance of the publics right to know, arguing that [t]his is not a whistle blowing case. Holmes Br. 3. But it is. Winters article suggested that had Holmes notebook been discovered and acted upon earlier, the Aurora massacre might have been avoided. Opening Br. 12; R. 351. In any event, the Legislature chose to provide an absolute protection for journalists confidential sources in all stories, not just those that meet Holmes definition of newsworthy. 24

appear and reveal her sources in Colorado. Holmes Br. 28-39. Holmes thirteenthhour factual arguments are waived, inappropriate for this Court to consider in the first instance, and meritless to boot. But they are telling because they reveal that even Holmes has no faith in the per se rule announced by the Appellate Division majority. At the very least, then, this Court should remand for reconsideration of the undue hardship prong under a proper standard. A. Holmes New Factual Arguments About The Harm To Winter Are Waived And Beyond This Courts Jurisdiction To Consider.

In the thirteen pages that Holmes devotes to the undue burden question, he spends less than one defending the actual holding the Appellate Division reached. The majority below did not quarrel with Winters and Professor Feldsteins uncontested affidavits, which demonstrated that if Winter appeared in Colorado and was forced to burn her sources it would end her career as an investigative journalist. The majority nevertheless affirmed because it believed that that catastrophic damage to Winters career was not certain, and that undue hardship does not involve an analysis of the potential consequences if [Winter] exercises privilege in Colorado. A. 5-7. As we explained in the opening brief, that was incorrect both as a matter of precedent and common sense. Opening Br. 47-48, 51; see also Matter of Beach v. Shanley, 62 N.Y.2d 241, 248-249 (1984) (holding that a grand jury subpoena seeking only confidential newsgathering information could be quashed before the reporter appeared before the grand jury). 25

Holmes barely bothers to disagree. Although he argues Michigan v. Marcys public-policy analysis was rejected in Codey, Holmes Br. 28, he has no response to Marcys additionaland separateanalysis that forcing a professional to choose between violating the tenets of her profession and potentially losing her job and going to jail imposes an undue hardship on the professional. 283 N.W.2d 754, 755 n.3 (Mich. Ct. App. 1979). And although he, like the Appellate Division majority, asserts that Codey settled this issue, Holmes Br. 27, he never addresses the part of Codey in which this Court emphasized that the need to protect New York residents from unjustified incursions on their liberty from forced participation in another States legal proceedings could be addressed through the undue-hardship prong. 82 N.Y.2d at 531 (citation omitted). Instead, Holmes spends his time arguing that no harm has or will befall Winter if she is forced to reveal her confidential sources, flyspecking the affidavits submitted below for the first time and opining based on snippets of news stories and webpage biographies. Holmes Br. 27-40. But those late-breaking arguments are procedurally improper. After all, it is black-letter law that this Court with rare exception does not review questions raised for the first time on appeal. Bingham v. N.Y. City Transit Auth., 99 N.Y.2d 355, 359 (2003). Holmes certainly never suggests this is that rare case.

26

That Holmes arguments are factual make them doubly improper. This Courts jurisdiction is limited to legal questions. N.Y. Const. art. VI, 3(a). The necessary corollary of that principle is that facts undisputed in the Supreme Court and accepted by the Appellate Division are conclusive upon this [C]ourt. Fisher v. Star Co., 231 N.Y. 414, 428 (1921). Holmes therefore cannot litigate for the first time in this Court the question whether forcing Winter to reveal her sources in Colorado would cause her harm. That is particularly so because if Holmes had raised his spurious arguments in the Supreme Court, Winter could haveand would havesubmitted reply affidavits rebutting them. See Bingham, 99 N.Y.2d at 359 (A new issueeven a pure law issuemay be reached on appeal only if it could not have been avoided by factual showings or legal countersteps had it been raised below.); accord Telaro v. Telaro, 25 N.Y.2d 433, 439 (1969). Holmes sudden attention to this factual issue is notable, however, because it betrays his lack of confidence in the Appellate Divisions legal holding. And for good reason: the Appellate Divisions unequivocal refusal to consider the careerending effects that accompany a journalist burning her sources is indefensible. On the uncontested facts as presented to the Supreme Court below, the subpoena should be quashed as an undue hardship. But at the very least, the Appellate Divisions legal error should be reversed and the case remanded for consideration of Winters proofs under the proper undue hardship standard.

27

B.

Forcing A Reporter To Reveal Her Confidential Sources Is An Undue Hardship On The Reporter And The Public.

On the merits of undue hardship, Holmes asserts that Winter will suffer no harm from being forced to appear in Colorado and reveal her sources because she has gone three times and survived each trip unscathed and has produced no actual evidence of harm. Holmes Br. 28. That is nonsense. The reason Winter pointed to no actual evidence of harm is because the subpoena had not yet issued when the record in this case closed. Winters claims of harm were necessarily based on prediction and past harm to others because she was attempting to ward off the very injuries that have now been visited upon her. See R. 335-339. And make no mistake: Winter has been harmed. As Winter explained in an affidavit submitted in the Colorado litigation, she has, among other harms, been unable to report on stories regarding national security and other important topics because her sources refuse to talk to her, specifically citing the pendency of these proceedings. Affidavit of Jana Winter, Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Jul. 2, 2013).5 That is a real and immediate harm to Winters career. Yet when Winter mentioned these hardships in the Appellate Division, Holmes protested they were beyond the Supreme Court record. Holmes App. Div. Br. 2930. He cannot have it both ways.
5

Available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_ Judicial_District/18th_Courts/12CR1522/003/Affidavit%20of%20Jana%20Winter. pdf. 28

In any event, Holmes personal opinion about the harm that journalists face when subpoenaed to reveal confidential sources cannot trump the evidence before the Legislature when it enacted the Shield Law. The Shield Laws legislative history includes an affidavit from no less an expert than Walter Cronkite, who explained that compelling news correspondents to testify * * * with respect to matters learned in the course of their work would largely undermine their utility as gatherers and analysts of news. R. 727. Dan Rather similarly explained that [t]he fear that confidential discussions may be divulged, as a result of grand jury subpoenas or otherwise, would curtail a reporters ability to discover and analyze the news. R. 730. And Mike Wallace told the Legislature that [i]f [my sources] believed I might, voluntarily or involuntarily, betray their trust by disclosing my sources or their private communications to me, my usefulness as a reporter would be seriously diminished and that if he were actually forced to testify, he could never again count on the cooperation of confidential sources. R. 732, 735-736. Winters and Professor Feldsteins affidavits may not be enough for Holmes, but he can hardly gainsay the opinions of these leading journalistsparticularly when they were relied upon by the Legislature that passed the Shield Law. See St. Nicholas Cathedral of Russian Orthodox Church in N. Am. v. Kedroff, 302 N.Y. 1, 31 (1950) ([I]n passing upon matters of legislative intent and competence, the courts * * * read the statute in light of the state of facts which were found by the

29

Legislature.), revd on other grounds by 344 U.S. 94 (1952); see also N.Y. Stat. 124 (In ascertaining the purpose and applicability of a statute, it is proper to consider the legislative history of the act, the circumstances surrounding the statute's passage, and the history of the times.). Indeed, Holmes supposed best evidence that Winter will not be injured by having to testify about her confidential sources is four anecdotes involving reporters who testified after being released by their sources from their previous promises of confidentiality. Holmes Br. 34-38.6 But thats the key distinction: these reporters, unlike Winter, were released from their promises of confidentiality before they testified. R. 337. Nothing in Holmes cherry-picked history of media freedoms can rebut the facts before the Legislature when it passed the Shield Law or the record developed in the Supreme Court below. New Yorks strong public policy dictates that Winter should not have to face contempt of court for upholding her pledge of confidentiality to her sources.

Holmes fifth example, Michael McKevitt, turned over nonconfidential outtakes, and did so at his sources request, and thus has no relevance to this appeal. McKevitt v. Pallasch, 339 F.3d 530, 533 (7th Cir. 2003). 30

CONCLUSION For the foregoing reasons and those in the opening brief, the Appellate Divisions order should be reversed and the subpoena quashed. In the alternative, the Appellate Divisions order should be reversed and the case remitted for proper consideration of whether the subpoena imposes an undue hardship on Winter. Respectfully submitted, HOGAN LOVELLS US LLP By: _______________________ /s/ Christopher T. Handman CHRISTOPHER T. HANDMAN* SEAN MAROTTA 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5791 chris.handman@hoganlovells.com DORI ANN HANSWIRTH THERESA M. HOUSE NATHANIEL S. BOYER BENJAMIN A. FLEMING 875 Third Avenue New York, New York 10022 (212) 918-3000 dori.hanswirth@hoganlovells.com Counsel for Respondent-Appellant Jana Winter * Admitted pro hac vice Dated: October 7, 2013

31