State v. Bergin

541 P.3d 587

The STATE of Arizona, Petitioner,

v. Hon. Jeffrey T. BERGIN and Hon. Danelle B. Liwski, Judges of the Superior Court of the State of Arizona, in and for the County of Pima, Respondents,andRyan Taylor Remington, Real Party in Interest.

No. 2 CA-SA 2023-0078

Court of Appeals of Arizona, Division 2.

Filed December 19, 2023

Laura Conover, Pima County Attorney, By Chris Ward, Deputy County Attorney, Tucson, Counsel for Petitioner

Natasha Wrae PC, Tucson, By Natasha Wrae and Law Office of Michael W. Storie, Tucson, By Michael Storie, Counsel for Real Party in Interest

Judge Gard authored the opinion of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred.

OPINION

GARD, Judge:

¶1 In this special-action proceeding, the state seeks review of the respondent presiding judge's order granting real-party-in-interest Ryan Remington's request for a transcript of a grand jury proceeding that resulted in the grand jurors declining to return an indictment against him.¹ Because the respondent erred by entering that order, we accept jurisdiction and grant relief.

Factual and Procedural Background

¶2 In August 2022, a grand jury indicted Remington for one count of manslaughter. The superior court remanded the matter to the grand jury on Remington's motion to redetermine probable cause. Before the second grand jury presentation, Remington submitted a Trebus letter, asking the prosecutor to present certain evidence to the grand jury.² The second grand jury returned a "no bill," meaning that it had not found probable cause and therefore had not returned an indictment. On the state's request, the court dismissed the matter without prejudice.

¶3 Days later, Remington filed a request for a transcript of the second grand jury proceeding. Based on the state's "indecision as to how it plan[ned] to proceed with the alleged homicide charges," Remington argued he needed the transcript "to effectively prepare a follow-up Trebus letter." The state opposed the request, asserting that Remington had "not made a particularized showing of why disclosure [was] needed to further the interests of justice such that grand jury secrecy should be set aside." In reply, Remington explained that he needed the transcript to examine the grand jurors’ questions in the event they had focused on "areas not previously contemplated by the parties."

¶4 Respondent Judge Liwski granted Remington's request, and the state moved to reconsider, arguing, in part, that Judge Liwski lacked jurisdiction to enter the order because "there [were] no active criminal felony charges pending." Judge Liwski denied the state's motion, relying on Ariz. Const. article VI, § 14 (1), (4), and (11) as the basis for the court's jurisdiction.

¶5 The state sought special-action review, and this court ordered supplemental briefing on the applicability of A.R.S. § 21-411(A), which governs the preparation of grand jury transcripts. In its supplemental brief, the state conceded that " § 21-411(A) appears to confer the trial court with authority and jurisdiction to order that a grand jury transcript be prepared in a case that did not end in an indictment."

¶6 This court accepted special-action jurisdiction and granted relief, reversing Respondent Judge Liwski's order disclosing the transcript to Remington. State v. Liwski , No. 2 CA-SA 2023-0032, 2023 WL 3485288 (Ariz. App. May 16, 2023) (mem. decision). We explained, "The last sentence of § 21-411(A) plainly provides the presiding judge with the jurisdiction and authority to order the release of a grand jury transcript in situations not otherwise covered by the statute, such as when a ‘no bill’ is returned." Id. ¶ 12. Because Judge Liwski was not the presiding judge, we concluded she had "lacked the authority to order the release of the second grand jury transcript to Remington." Id. ¶ 15. Neither party filed a petition for review of this court's decision.

¶7 Remington then filed another request for the transcript of the second grand jury proceeding, this time directed to Presiding Judge Bergin. Remington argued "there ha[d] been no indication from the [s]tate that it no longer intends to submit the matter to a third grand jury" and, as a result, his "request remain[ed] the same." In response, the state again maintained that Remington had failed to make "a particularized showing of why disclosure is needed." Relying on A.R.S. § 13-2812(A), which criminalizes disclosure of grand jury proceedings, the state asserted that a court may release a grand jury transcript of a no-bill proceeding only when in furtherance of justice and that Remington's request fell short of this standard. The state further reasoned that Remington was on a "fishing expedition" and that releasing the transcript would "erod[e] the public's confidence that grand jury proceedings are truly secret proceedings."

¶8 Judge Bergin granted Remington's request for the second grand jury transcript. He explained that this was "a very unique case":

As I described it before when we were looking at a third grand jury, one having been true billed, one no billed, and recognizing that the secrecy policy or the confidentiality policy is not well served in this case and recognizing that defense has put forward an argument showing a need and value for the representation of their client, and the Court does interpret that as in furtherance of justice.

¶9 He further ordered all juror identification redacted and limited the use of the transcript to "the defense of the criminal matter arising out of this incident." This petition for special action followed.

Jurisdiction

¶10 "Our decision to accept jurisdiction of a special action is highly discretionary."

League of Ariz. Cities & Towns v. Martin , 219 Ariz. 556, ¶ 4, 201 P.3d 517 (2009) ; see also Ariz. R. P. Spec. Act. 3 bar committee note. Here, special action is the only means by which the state may obtain review of the presiding judge's order to release the transcript to Remington. See A.R.S. § 13-4032 (providing orders from which state may appeal). This matter also raises a purely legal issue, making it particularly appropriate for special-action review. See ChartOne, Inc. v. Bernini , 207 Ariz. 162, ¶ 8, 83 P.3d 1103 (App. 2004).

¶11 Further, a presiding judge's authority to release a grand jury transcript of a proceeding that did not result in an indictment is a potentially recurring issue of statewide importance. See Devlin v. Browning , 249 Ariz. 143, ¶¶ 6-7, 467 P.3d 268 (App. 2020) (special-action review appropriate when case presents issue of statewide importance or issue likely to recur). Finally, as discussed below, the presiding judge erred by ordering the transcript's release. See Ariz. R. P. Spec. Act. 3(c) (special action appropriate to address whether determination was abuse of discretion); State v. Campoy , 220 Ariz. 539, ¶ 37, 207 P.3d 792 (App. 2009) (when trial judge commits error of law, judge abuses discretion). For these reasons, we exercise our discretion and accept special-action jurisdiction.

Discussion

¶12 The state's argument has two parts. First, the state contends the presiding judge "lacked authority to order the preparation and disclosure of the transcript in this circumstance." Second, assuming the presiding judge had such authority, the state asserts "Remington did not make the required showing to justify the order." We address each argument in turn.

I. Authority

¶13 Section 21-411(A) requires the trial court to appoint a court reporter for grand jury proceedings and, when the grand jury returns an indictment, requires the reporter to transcribe and file a transcript of the proceeding. That transcript must then be made available to the defendant and the prosecutor. Id. The statute's final two sentences are at issue here:

The transcript or a portion of the transcript may be denied to a defendant by the court upon a showing of extraordinary circumstances by a prosecuting officer. The reporter's notes which are not transcribed as provided in this section shall be filed with the clerk of the superior court and impounded and shall be transcribed only when ordered by the presiding judge of the superior court.

See also Ariz. R. Crim. P. 12.7(c) (corresponding procedural rule requiring court reporter to transcribe and file grand jury transcript within twenty days of indictment, to be "made available only to the court, the [s]tate, and the defendant").

¶14 The state contends that § 21-411(A) does not apply to "grand jury proceedings that end with no indictment." It reasons that § 21-411(A) ’s final sentence, in which we located the presiding judge's authority to order the transcript in the previous special action, does not apply to no-bill proceedings. Rather, the state contends that the sentence refers to transcripts withheld from the defendant based on a showing of extraordinary circumstances, as discussed in the statute's penultimate sentence. The state also renews all of its previous arguments from the first special-action proceeding, including its assertion that the respondent judges lacked authority to order the transcript's preparation because the criminal case had been dismissed, depriving the superior court of jurisdiction over the matter.

¶15 As discussed above, we determined in the first special-action proceeding that § 21-411(A) gives the presiding judge jurisdiction and authority to release a grand jury transcript of a no-bill proceeding. Liwski , No. 2 CA-SA 2023-0032, ¶ 12. The state did not request reconsideration of that ruling or ask the Arizona Supreme Court to review it. Our decision has therefore become law of the case. See Stauffer v. Premier Serv. Mortg. , LLC , 240 Ariz. 575, ¶ 15, 382 P.3d 790 (App. 2016) (law of the case provides that court decision in case is "the law of that case on the issues decided throughout all subsequent proceedings in both the trial and appellate courts, provided the facts, issues and evidence are substantially the same as those upon which the first...