The Lexington Herald-Leader Co. v. Beard ( 1984 )

VANCE, Justice,

dissenting.

I dissent from all of the opinion which goes beyond holding that the Court of Appeals properly dismissed the appeal because the order appealed from was not a final order. The discipline which I believe we should impose upon ourselves would not permit us to affirm the dismissal of an appeal by the Court of Appeals, and then proceed to review the merits of the issues raised in the appeal which had been dismissed.

Since the majority has affirmed the dismissal of the appeal by the Court of Appeals, it is my view that all of the discussion of the merits of the First Amendment issues raised are not necessary to the holding and are, therefore, purely dictum.

We have no information as to any specific question which may be propounded to a reporter or any specific document or type of information which the reporter may want to exempt from discovery, nor any information as to the relevance of specific questions or information. The majority approves the order of the trial court. The newspaper or the reporters may yet request deletion of some of the material requested, and the trial court will hold a hearing and rule upon the specific request and enter an order thereon. Essentially, this leaves the case exactly where it was before the appeal was taken and dismissed, except that we have, by dicta, issued an advisory opinion to the trial judge that when and if the newspaper or its reporters request a deletion or exemption of any of the specific items of material sought to be discovered, he should give no consideration to any claim of First Amendment protection. In my view, an advisory opinion of this nature should not be given by this court until the matter is squarely before us by way of a valid appeal, not one which has been properly dismissed.

STEPHENSON, J., joins in this dissent.