concurring specially and dissenting.
I concur in the end result but not in the rationale or method by which the result was reached or obtained.
Initially, in my opinion, NDCC § 31-01-06.2 generally, and especially under the facts of this case, does not apply to the photographs taken at the scene of the accident. In making this statement I am not implying that other photographs may never be treated as confidential or privileged. Under different facts or extenuating circumstances, which are not present here, photographs may be treated or considered confidential or privileged.
The statute, in essence, provides:
“No person shall be required ... to disclose any information or the source of any information procured or obtained while ... engaged in gathering, writing, photographing, ... and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order of a district court ... which, after hearing, finds that the failure of disclosure ... will cause a miscarriage of justice.” [Emphasis added.]
It is information or source of information which is protected. I can see no chilling effect on newsgathering regarding the taking of pictures of a situation which may be and was viewed by the general public.
If the statute applies to the photographs, which I don’t agree it does, then I am of the opinion it was not properly followed in the instant situation. Assuming the statute applies to the photographs in this case, then the court, on a proper showing, will be required to conduct a hearing. The statute implies that at the hearing the party seeking the disclosure will be required to either establish probable cause for the court to require the submission of the photographs to the court for an in camera inspection or, in the alternative, to submit competent evidence to enable the court to find if the failure to disclose will cause a miscarriage of justice.
Technical words and phrases used in a statute which have acquired a peculiar and appropriate meaning in law shall be construed according to such peculiar and appropriate meaning or definition. NDCC § 1-02-03. Also, statutes are to be construed liberally with the view to effect its objective and promote justice. NDCC § 1-02-01; Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870 (N.D.1975).
The term “finds,” as used in the statute in question, is a legal expression1 and is comparable to the phrase “finding of fact” which must be based upon competent and relevant evidence and inferences which may be properly drawn from such evidence and not upon assumption or speculation. Otherwise, the findings will be clearly erroneous. It requires more than probable cause. The probable cause concept was in the original bill but was amended out.2
*859However, I believe probable cause was shown in this case to justify the court to order the production of the photographs in camera for the examination by the court so the court could make a valid finding whether or not a miscarriage of justice will occur if the photographs are not disclosed.
In my opinion the evidence submitted to the court in the instant case only warranted probable cause to order the submission of the photographs to the court in camera for inspection, but otherwise is not sufficient to find that a failure to disclose will cause a miscarriage of justice.
The proceedings contemplated by NDCC § 31-01-06.2 do not come under the exception stated in Rule 52, NDRCivP, such as Rules 12 or 56, or motions as generally stated in the rule. They are instead governed by the statute and are comparable or similar to the proceedings set out in Chapter 27-20, especially §§ 27-20-44 and 27-20-50, wherein the statute specifically provides “if . . . the court finds.”
The legislature could have used a number of other terms or expressions, such as “if the court determines, concludes or decides,” or any other similar expression, but instead it used the expression “if the court finds.” We must therefore conclude that the legislature chose the expression deliberately, especially so when the act was subjected to amendments as was the case here. .
I cannot agree the court could make a valid finding that a failure to disclose the photographs will cause a miscarriage of justice upon the evidence submitted.
The photographs, except for the one that appeared in the newspaper, were not described by the person who took them or by anyone who knew the contents thereof, nor were they viewed by the court.
In the petition for the supervisory writ the applicant attorney, in an affidavit, stated: “It appears that shortly after the accident a photographer from the Grand Forks Herald took one or more photographs of the accident scene.” Witness John Stennes, at the hearing before the district court, testified that he is the chief photographer of the Grand Forks Herald and is the custodian of the photographs of the automobile accident in this case. He also testified that the Grand Forks Herald published one photograph, and that he did not have to ask anyone’s permission to take the pictures. However, he never really answered the question if anyone gave him confidential or otherwise inside information regarding the taking of the pictures.
Under these facts I do not believe the court could justifiably find that a nondisclosure of the photographs will cause a miscarriage of justice.
As stated earlier, I do not believe that the statute in question applies to photographs in this case, particularly when the paper has published one of the pictures and is offering it for sale to the public at a given price. On this basis I would affirm the decision of the district court by denying the application for a supervisory writ.
. “Find” is defined in Black’s Law Dictionary as follows: “To announce a conclusion upon a disputed fact or state of facts; as a jury is said ‘to find a will.’ To determine a controversy in favor of one of the parties; as a jury ‘finds for the plaintiff.’ ” See also, “finding.” Black’s Law Dictionary 568 (5th ed. 1979).
. Senate Bill No. 2077, as initially introduced, contained the following language:
“Unless directed by a final order of a district court of this state which after a hearing expressly finds:
1. the existence of probable cause to believe that the respondent or his source has evidence which is relevant and material to an issue of proper concern to the petitioner, and
*8592. disclosure by the respondent is the only method by which such evidence, or evidence of similar effect, can be obtained; and
3. the failure of disclosure of such evidence will cause a miscarriage of justice.” See Senate Journal of 1973, page 560, and Ch. 258 of 1973 Session Laws.
The Bill as amended now provides:
“By an order of a district court of this state which after hearing finds that the failure of disclosure of such evidence will cause a miscarriage of justice.”