Baldwin County Circuit Court Judge Clark Stankoski ordered Lagniappe to turn over unpublished communications with protected sources Tuesday, ruling that “all materials and/or documents and/or requested communications that were not published, broadcast or televised are not subject to protection by the Alabama Shield Statute.”
While Stankoski did quash efforts to force Lagniappe to turn over all materials related to the paper’s reporting on a civil suit against Fairhope bar owner Ronan McSharry, his reading of the Shield Statute is a departure from what has been standard practice in Alabama and would set a precedent that would leave journalists open to revealing sources and source materials.
Earlier that day, Lagniappe was in court along with other non-parties in a civil lawsuit seeking to quash subpoenas related to a case against McSharry, who is being sued by a woman he was convicted of assaulting in 2018. At the hearing, Stankoski sought clarification from attorneys on both sides as to whether the law, Ala. Code §12-21-142, protects both the sources themselves and communications with those sources.
Arguing in favor of a motion to quash a subpoena issued to Lagniappe last November, attorney Donald Bolton told Stankoski the law is clear.
“Lagniappe is a newspaper operating for years in Mobile and Baldwin counties, and they have an absolute privilege to refrain from disclosing sources of information, based on the Alabama shield statute, which states they do not have to provide sources of any information obtained for the newspaper,” he said. “I think the code is very clear … I think it’s very clear nationwide, and there’s not a lot of [precedence] in Alabama, quite frankly because this statute is extremely clear.”
McSharry’s attorney, James Pittman, disagreed, saying the statute only protects the disclosure of sources, not the information sources may provide. Claiming he already knows “who [Lagniappe’s] sources are,” Pittman told Stankoski he was asking for “communications between Lagniappe and all of these people that we believe have got it in for Mr. McSharry.”
According to subpoenas filed last year, those people may include Fairhope Mayor Karin Wilson, attorney Harry Still and consumer advocate and internet publisher Paul Ripp. Tuesday, Pittman said he would withdraw subpoenas for Still and Ripp based on attorney-client privilege, but he pressed Stankoski to uphold the subpoena for Lagniappe, while mischaracterizing this newspaper’s reporting on the case.
“If your honor will recall that factually, a complaint was filed against Mr. McSharry and either the very next day or two days later there is a Lagniappe article about Mr. McSharry that references the complaint that is packed full of completely irrelevant information that your honor has deemed private, or sealed,” Pittman argued. “The incident in question took place at a bar in Fairhope, not Mr. McSharry’s [bar], but there’s all kind of stuff in the complaint about his [Alabama Alcoholic Beverage Control Board] license and his bar and all this stuff that is totally irrelevant to put in the complaint. What we’ve got is a pattern and practice that court pleadings are filed and then Lagniappe, immediately thereafter, cites it to reportedly lend some legitimacy to the things that are said about my client.”
Lagniappe’s initial report on McSharry’s civil case was published on May 8, 2019, more than a week after the lawsuit was filed April 30. It was a follow-up report to a separate story published May 1, detailing McSharry’s criminal conviction for assault that resulted in an 180-day jail sentence, records of which were filed in Fairhope’s municipal court April 17.
Both news stories were largely derived from public records, including police reports, indicating McSharry had been cited several times over the years over allegations including public intoxication, harassment, domestic violence and assault.
In the current case, McSharry was convicted of pushing Paula DiNardi off a barstool in the Little Whiskey Christmas Club on Nov. 23, 2018, causing her to hit her head on the floor and sustain injuries. At the time, he was on probation for another crime, in which he was convicted of harassing artist and neighboring business owner Nall Hollis.
In an earlier case, court records indicate McSharry’s ex-wife sought a restraining order after he beat her during a “drunken state” in late 2014. When she reported it to the police, McSharry beat her again, the motion claims. The restraining order sought to prevent McSharry from “yelling, screaming, hitting, striking, spitting or coming around” his ex-wife “in any violent manner” pending disposition of their divorce. He pled guilty to the charge in January 2015 and the divorce was finalized in August 2015, with McSharry paying his ex-wife $100,000 on top of $170,000, which was held in a safe deposit box.
On July 30, 2019, Pittman filed a motion to seal certain records in the case, one Stankoski later granted without a hearing. That order, along with several others in the case, were issued without due process, according to DiNardi’s attorney David McDonald. This led McDonald to file a (writ of) mandamus against Stankoski in November, urging the Alabama Supreme Court to review and reverse several of Stankoski’s rulings in the case.
Specifically, McDonald alleges Stankoski has repeatedly made findings of fact “based solely on McSharry’s unverified representations, while prohibiting [the plaintiff] from obtaining public records and sealing a number of files in the case at McSharry’s request without holding a hearing as to why they shouldn’t be public.”
Further, McDonald argued Stankoski “has granted nearly every motion filed by Mr. McSharry before [DiNardi] has had a reasonable opportunity to respond” and “the trial court has repeatedly made findings of fact without a hearing, based solely on the unverified representations of [Pittman].”
A response from the supreme court is pending. Meanwhile, Stankoski said during Tuesday’s hearing the subject of the shield law as it pertains to Lagniappe’s subpoena was “a little muddy.” Stankoski actually raised the issue with Bolton before Pittman made any argument that the shield law does not absolutely protect reporters’ conversations and information gathered.
By definition, the law reads: “No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall be compelled to disclose in any legal proceeding or trial, before any court or before a grand jury of any court, before the presiding officer of any tribunal or his agent or agents or before any committee of the Legislature or elsewhere the sources of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any television station on which he is engaged, connected with or employed.”
“The code says sources ‘of’ any information, not sources ‘and’ information, but sources ‘of’ information,” Stankoski emphasized. But Tuesday afternoon the judge recognized Lagniappe’s privilege in the case regarding information already published, also noting that Pittman had not demonstrated the information he sought was highly relevant to the case, that there was a compelling need for the disclosure, or that he had attempted to seek the information elsewhere first.
“We are glad to see Judge Stankoski quash these subpoenas as they related to information Lagniappe has published. But it is troubling the court did not immediately recognize the well-established history of a reporter’s privilege that serves as the very basis for protecting the investigative journalism critical to unearthing corruption and wrongdoing. Also, the judge’s reading of the law opens a massive door for media outlets to be subpoenaed over stories they are still working on, which would have a serious chilling effect on obtaining sources and create an artificial rush to publication,” Lagniappe co-publisher Rob Holbert said. “It’s unfortunate Mr. Pittman was allowed to waste time and money trying to breach this vitally important privilege so he could conduct a fishing expedition in support of a bizarre and unfounded conspiracy.”
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