L.H. v. Vandenberg

256 Ariz. 44

535 P.3d 46

L.H. & D.L., Petitioners,

v.The Honorable Lisa VANDENBERG, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,The City of Peoria, Real Party in Interest.

No. 1 CA-SA 23-0055

Court of Appeals of Arizona, Division 1.

Filed August 1, 2023

Legal Services for Crime Victims in Arizona, Sun City, By Jamie Balson, Counsel for Petitioners

Peoria City Attorney's Office, Peoria, By Amanda C. Sheridan, Saman J. Golestan, Counsel for Real Party in Interest, City of Peoria

Hallam Law Group, PLLC, Phoenix, By Josephine Hallam, Counsel for Defendant Gabriel Ballestero

Apfel Law Group, Phoenix, By Seth Apfel, Counsel for Defendant Gabriel Ballestero

Maricopa County Attorney's Office, Phoenix, By Krista Wood, Counsel for Amicus Curiae, Maricopa County Attorney's Office

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Michael S. Catlett joined.

BROWN, Judge:

¶1 Under A.R.S. § 39-127(A), a victim of a "part I crime" has the right to receive a free copy of the related police report from the investigating law enforcement agency.¹ Crime victims L.H. and D.L. ("Petitioners") challenge the trial court's ruling that it lacked jurisdiction to consider their motion to compel the City of Peoria ("City") to give them an unredacted police report relating to crimes allegedly committed against them by Gabriel Ballestero. Because the court erred in declining to address the merits of Petitioners’ motion to compel, we accept special action jurisdiction, vacate the ruling, and remand for further proceedings.

BACKGROUND

¶2 After criminal charges for sexual offenses were filed against Ballestero, Petitioners requested a copy of the related police report from the City under § 39-127(A). In response, the City provided a lengthy report (at least 37 pages), but it contained substantial redactions that according to Petitioners made the report unintelligible. The City denied Petitioners’ subsequent request for an unredacted copy of the report.

¶3 In Ballestero's pending criminal case, out of which this special action arises, Petitioners moved to compel the City to provide them with an unredacted report.² To explain their standing and appearance before the trial court, Petitioners relied on A.R.S. § 13-4437(A), which gives crime victims the right to seek an order, bring a special action, or appear in an appellate proceeding to address "any right guaranteed to victims." See A.R.S. § 13-4437(A). Petitioners argued that without an unredacted report they cannot effectively consult their counsel, determine how to confer with the prosecution, and assert "all other rights afforded to them as victims."

¶4 Citing Arizona Rule of Civil Procedure 24, the City moved to intervene in Ballestero's case to respond to Petitioners’ motion to compel. The City asserted that Petitioners’ exclusive remedy to challenge its refusal to provide an unredacted police report was to file a civil special action complaint. See A.R.S. § 39-121.02(A) (stating that a person denied access to public records "may" appeal the denial by filing a special action in the superior court). The City argued Petitioners’ motion was "procedurally improper" and the trial court lacked jurisdiction to consider it. Alternatively, the City asserted it complied with § 39-127(A) by providing Petitioners a free copy of the report and that nothing in the statute entitles victims to an unredacted copy. In response, Petitioners argued the trial court has jurisdiction to hear their motion because nothing in § 39-121.02(A) suggests it "is the only method of seeking relief on this issue." Citing Marvin Johnson, P.C. v. Myers , 184 Ariz. 98, 100, 907 P.2d 67, 69 (1995), they also argued the trial court has the same jurisdiction as every other division and judge of the superior court because the superior court of Arizona is a "single unified trial court of general jurisdiction."

¶5 The trial court denied the motion to compel, explaining the issue raised was "civil" and Petitioners had not provided "any specific legal authority to pursue this request with this Criminal Court." Instead, the court was persuaded by the City's "procedural issue," reasoning that the motion pertained to non-parties such that "who should hear the action is not before this [c]ourt at this time." Thus, the trial court did not reach the merits of the redaction dispute because it implicitly concluded it lacked jurisdiction to consider issues outside the criminal prosecution arena.

¶6 Petitioners then filed this petition for special action, naming Ballestero as the real party in interest. We issued an order substituting the City as the real party in interest and invited other interested parties or organizations to address the petition. In Ballestero's filing, he asserts the petition lacks merit because Petitioners did not try to obtain the report through other means, but he ultimately takes no position "to the extent that Petitioners seek the unredacted reports via proper channels." In its amicus brief, the Maricopa County Attorney's Office asserts that § 39-127 does not grant victims the right to a complete and unredacted report but takes no position on the jurisdiction issue.

DISCUSSION

¶7 The decision to accept or deny special action jurisdiction is discretionary. Potter v. Vanderpool , 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257, 1260 (App. 2010). The City urges us to decline jurisdiction based on laches, asserting Petitioners waited three months to challenge the trial court's ruling. But the City does not claim resulting prejudice or argue the delay was unreasonable. See Sotomayor v. Burns , 199 Ariz. 81, 83, ¶ 6, 13 P.3d 1198, 1200 (2000) (explaining laches generally bars a claim only when the delay is unreasonable and causes prejudice to the opposing party). In our discretion, we accept special action jurisdiction because Petitioners, as non-parties to the pending criminal prosecution against Ballestero, lack an equally plain, speedy, and adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a) ; State ex. rel. Romley v. Superior Court , 184 Ariz. 409, 410, 909 P.2d 476, 477 (App. 1995) (accepting special action jurisdiction to address who can be considered a victim to exercise crime victims’ rights).

A. Interpretation of A.R.S. § 39-121.02(A)

¶8 "Any person who has requested to examine or copy public records ... and who has been denied access to or the right to copy such records, may appeal the denial through a special action in the superior court[.]" A.R.S. § 39-121.02(A) (emphasis added). Petitioners argue this statute creates a "possible, but not exclusive method of appeal of denial of a right to a police report." The City counters that when the legislature chooses to include the word "may" in a statute establishing a cause of action, its intention is mandatory, which means crime victims who seek relief from the denial of their right to a police report may only do so by filing a "civil special action."

¶9 We review questions of statutory interpretation de novo. Am. C.L. Union of Ariz. v. Ariz. Dep't of Child Safety (ACLU-AZ) , 251 Ariz. 458, 461, ¶ 11, 493 P.3d 885, 888 (2021). "In interpreting a statutory provision, we give words ‘their ordinary meaning unless it appears from the context or otherwise that a different meaning is intended.’ " Id. (citation omitted).

¶10 To determine whether the word "may," as used in § 39-121.02(A), is permissive or mandatory, we begin with the word's plain meaning. See Democratic Party of Pima Cnty. v. Ford , 228 Ariz. 545, 548, ¶ 9, 269 P.3d 721, 724 (App. 2012). Applying general principles of statutory construction, "may" indicates permissive intent. See, e.g. , City of Chandler v. Ariz. Dep't of Transp. , 216 Ariz. 435, 438, ¶ 10, 167 P.3d 122, 125 (App. 2007). Here, a plain reading of the term reveals that "may," as used in § 39-121.02(A), has the same intent. See id. ; see also Paradigm DKD Grp., LLC v. Pima Cnty. Assessor , 246 Ariz. 429, 435, ¶ 19, 439 P.3d 1210, 1216 (App. 2019) (recognizing the "plain text" of § 39-121.02(A) ). It authorizes a particular course of action (filing a special action) if a party chooses to do so. Conversely, the words "shall," "must," and "may not" typically denote mandatory provisions. Garcia v. Butler in & for Cnty. of Pima , 251 Ariz. 191, 195, ¶ 15, 487 P.3d 256, 260 (2021).

¶11 When a statute employs discretionary and mandatory terms, we generally infer that the legislature intended each term to carry its ordinary meaning. See Walter v. Wilkinson , 198 Ariz. 431, 432, ¶ 7, 10 P.3d 1218, 1219 (App. 2000) ; see also City of Chandler , 216 Ariz. at 438–39, ¶ 10, 167 P.3d at 125-26 (presuming "that the Legislature was aware of the difference between [‘may’ and ‘shall’] and meant each [term] to carry its ordinary meaning").

¶12 The City argues that "may" is not always permissive, pointing to instances when courts have construed the term as mandatory, "especially where statutes grant the right of appeal to the superior court from an administrative decision." See, e.g. , Hamilton v. State , 186 Ariz. 590, 593–94, 925 P.2d 731, 734-35 (App. 1996) (interpreting "may" as mandatory in the scheme of grievance procedures because the right to appeal requires exhaustion of administrative remedies). But those cases are not helpful here because we are not dealing with an administrative review process or remedy, and as discussed below, this dispute concerns rights that are statutorily guaranteed to crime victims.

¶13 Our interpretation is supported by A.R.S. § 39-121.02(B), which states that courts "may" award attorney fees and other costs incurred in actions related to public records requests, and if awarded, the rights of any party to recover other fees "shall" not be limited. See A.R.S. § 39-121.02(B) ; J.D. v. Hegyi , 236 Ariz. 39, 41, ¶ 6, 335 P.3d 1118, 1120 (2014) (explaining that words in statutes should not be read in isolation from the context in...