SCREEN IMAGE BEK TV's attorney Robin Forward speaks during oral arguments before the North Dakota Supreme Court on March 23.

The North Dakota Supreme Court has denied the petition from a North Dakota television broadcaster seeking to quash a subpoena for unaired interview footage of the surviving witness to a 2023 murder.

Justice Jon Jensen authored the majority opinion, which was joined by Justices Douglas Bahr, District Court Judge Lofgren and surrogate Judge Bruce Romanick. Chief Justice Lisa Fair McEvers filed a concurring opinion, while justices Jerod Tufte and Mark Friese were disqualified from participating.

According to court documents, BEK Communications had filed a petition seeking a supervisory writ from the state Supreme Court to vacate a district court order to produce 290 minutes of interview footage of the victim of a Christmas Eve 2023 shooting who witnessed the murder of serviceman Nicholas Van Pelt in Minot.

The surviving witness had requested BEK keep certain information contained in the unused footage confidential, due to its private and intimate nature.

The footage and accompanying documents and information had been subpoenaed by state prosecutors, who argued reviewing the unaired interview footage was necessary to maintain the constitutional rights of the defendant in the case, former Homeland Security Investigator Daniel Breijo.

While District Court Judge Daniel El-Dweek had not technically denied BEK TV’s motion to quash the subpoena, he did order an “in camera” review of the footage by the court to determine if withholding the requested material from the state would cause a miscarriage of justice.

BEK TV had argued El-Dweek abused his discretion by failing to apply the balancing test created by a 1982 North Dakota Supreme Court decision in Grand Forks Herald v. District Court Grand Forks County before ordering the “in camera” review.

While the Grand Forks Herald test determines the bounds of North Dakota’s journalism shield laws, that case was related to unpublished photos and not the sensitive information at issue in the BEK case, which Jensen indicated was the reason the court took up the petition.

However, Jensen and the majority found that State’s Attorney Amanda Engelstad had shown the state’s request was relevant and material, and that the district court had not yet made a determination regarding whether withholding the information would constitute a miscarriage of justice.

Jensen continued writing that other courts have held that “in camera” reviews strike the appropriate balance between BEK’s first amendment interests and the need for disclosure. The justices found BEK’s petition was premature, and the district court should complete the additional analysis required in such a criminal case.

In Chief Justice McEver’s concurring opinion, she wrote that while she largely agreed with the majority’s conclusion, she did find the district court had abused its discretion by failing to address the motion to quash before ordering an “in camera” review, which came before completing its analysis regarding “in camera” reviews in criminal cases.

“While we are not granting the relief requested by BEK Communications to quash the subpoena duces tecum, the majority is effectively supervising by ordering the court to conduct required additional analysis,” McEvers concluded.

The next hearing date in Breijo’s case has not been set, pending a scheduling conference that follows the recent appointment of his court appointed attorney, Steven Mottinger. Breijo’s jury trial is scheduled to begin on Oct. 19 at the Ward County Courthouse.