Morgan v. Dickerson

• Decision Date: 20 July 2021
• Docket Number: Nos. 2 CA-SA 2021-0007,2 CA-SA 2021-0019 (Consolidated),s. 2 CA-SA 2021-0007
• Citation: 496 P.3d 793,49 Arizona Cases Digest 4
• Parties: David M. MORGAN and Terri Jo Neff, Petitioners, v. Hon. Timothy DICKERSON and Hon. Laura Cardinal, Judges of the Superior Court of the State of Arizona, in and for the County of Cochise, Respondents, and The State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

49 Arizona Cases Digest 4

496 P.3d 793

David M. MORGAN and Terri Jo Neff, Petitioners,

v.Hon. Timothy DICKERSON and Hon. Laura Cardinal, Judges of the Superior Court of the State of Arizona, in and for the County of Cochise, Respondents,andThe State of Arizona, Real Party in Interest.

Nos. 2 CA-SA 2021-0007

2 CA-SA 2021-0019 (Consolidated)

Court of Appeals of Arizona, Division 2.

Filed July 20, 2021

First Amendment Clinic, Phoenix, By Gregg P. Leslie, a clinical professor appearing pursuant to Rule 38(c), Ariz. R. Sup. Ct., and Jill Mceldowney and Simon Hawks, students certified pursuant to Rule 39(c), Ariz. R. Sup. Ct., Counsel for Petitioners

Mark Brnovich, Arizona Attorney General, By Marjorie S. Becklund, Assistant Attorney General, Tucson, Counsel for Respondents

Brian M. McIntyre, Cochise County Attorney, By Lori Ann Zucco, Chief Criminal Deputy, and Michael A. Powell, Deputy County Attorney, Bisbee, Counsel for Real Party in Interest

Mark Brnovich, Arizona Attorney General, Lacey Stover Gard, Deputy Solicitor General/Chief of Capital Litigation, By Ginger Jarvis, Assistant Attorney General, Phoenix, Counsel for Amicus Curiae Arizona Attorney General

Elizabeth Burton Ortiz, Phoenix, Counsel for Amicus Curiae The Arizona Prosecuting Attorneys’ Advisory Council

Vice Chief Judge Staring authored the opinion of the Court, in which Presiding Judge Espinosa and Chief Judge Vásquez concurred.

STARING, Vice Chief Judge:

¶1 In these consolidated special actions, petitioners David Morgan and Terri Jo Neff seek access to the names of jurors seated in two criminal trials in Cochise County. They contend the innominate jury system¹ the respondent judges employed is not authorized by Arizona law and violates the First Amendment to the United States Constitution. We disagree and therefore, although we accept review, we deny relief.

¶2 In State v. Wilson , the underlying criminal case in SA 2021-0007, petitioners, who publish material on the internet from Cochise County, intervened and sought clarification concerning their access to the proceedings under COVID protocols and access to the names of the jurors. Respondent Judge Dickerson clarified that their access under the COVID protocols would be solely through audio recording,² and also ordered: "The names of jurors, both potential and those selected to serve, will not be released." During trial, the jurors were assigned numbers, but their names were not publicly stated, although counsel had access to their names. After the trial, petitioners again sought the names of the jurors. Judge Dickerson denied the motion to unseal the jurors’ names, citing Wilson's history of violence toward his attorneys and the judge in the case; Morgan's relationship with Wilson's mother; and concerns from the jurors themselves for their safety. Petitioners sought special-action relief.

¶3 In State v. McCoy , the criminal proceeding underlying SA 2021-0019, Respondent Judge Cardinal also used the innominate system for jurors. Petitioners again sought to intervene, asking for access to the courtroom during trial and for the juror names to be public during voir dire. They also asked that if the names were kept private during voir dire, they be released after the trial and the jurors not be promised that their names would be kept secret.

¶4 Judge Cardinal allowed petitioners to be present in the courtroom, but she denied their requests to release jurors’ names. She noted generally the defendant's right to a fair trial and "concerns that the jurors may feel pressured if their names are known," particularly "in a small community that they may feel that their privacy is compromised in some way, or that they feel under pressure to make particular decisions one way or the other." Petitioners again sought special-action relief.

¶5 In these consolidated special actions, petitioners argue both judges "proceeded in sealing juror names without legal authority" and "ignor[ed] the First Amendment presumption of access to the names of jurors without establishing a compelling need." We accept special-action jurisdiction because the issue presented "is one of law and of statewide importance." State ex rel. Montgomery v. Rogers , 237 Ariz. 419, ¶ 5, 352 P.3d 451 (App. 2015). To obtain relief, petitioners must show the respondent judges "proceeded ... without or in excess of ... legal authority" or their decisions were "arbitrary and capricious or an abuse of discretion." Ariz. R. P. Spec. Act. 3(b), (c).

¶6 We first address the respondent judges’ authority to proceed with an innominate jury. Arizona has several statutes and court rules addressing juror information. Pursuant to A.R.S. § 21-312(A), "[t]he list of juror names or other juror information shall not be released unless specifically required by law or ordered by the court." Likewise, "[a]ll records that contain juror biographical information are closed to the public." § 21-312(B). Section 21-312 was adopted in 2007, as part of a bill that made a number of the changes to the statutory scheme for the formation of juries. See 2007 Ariz. Sess. Laws, ch. 199, § 14. Legislative documents describing the bill spoke broadly of closing juror records to the public and maintaining the privacy of juror information, including juror names. See, e.g. , S. Fact Sheet for S.B. 1434, 48th Leg., 1st Reg. Sess. (Ariz. 2007). In addition to adding these provisions, the legislature eliminated a long-standing provision allowing a list of juror names to be obtained with payment of a fee. 2007 Ariz. Sess. Laws, ch. 199, §§ 14, 19.

¶7 Similarly, Arizona's Rules of Criminal Procedure require that

[t]he court must obtain and maintain juror information in a manner and form approved by the Supreme Court, and this information may be used only for the purpose of jury selection. The court must keep all jurors’ home and business telephone numbers and addresses confidential, and may not disclose them unless good cause is shown.

Ariz. R. Crim. P. 18.3(b). In 1997, after establishing the Committee on More Effective Use of Juries, our supreme court adopted the provision now found in Rule 123(e)(10), Ariz. R. Sup. Ct. That rule provides that

[t]he home and work telephone numbers and addresses of jurors, and all other information obtained by special screening questionnaires or in voir dire proceedings that personally identifies jurors summoned for service, except the names of jurors on the master jury list, are confidential, unless disclosed in open court or otherwise opened by order of the court.

Id. That committee's report suggested that "juror information that might be used for contact purposes," such as names, phone numbers, and employment information that "could be used to locate the individual juror," should be withheld. The committee also concluded that while no "formal recommendation, rule or policy" was then required, "the decision to proceed with juror numbers rather than names ought to be left to the individual trial judge's sound discretion."

¶8 In 2001, our supreme court created another committee to study jury practices. Ariz. Sup. Ct. Admin. Order No. 2001-69 (July 11, 2001). That committee recommended the procedure now set forth in Rule 23.3, Ariz. R. Crim. P., requiring that when polling the jurors for their verdicts, the court use something other than their name "to accommodate the jurors’ privacy." Notably, if the names of potential jurors were disclosed during voir dire, a person present in the courtroom during both voir dire and the polling of the jury could easily identify jurors by name and publicize their identities, including their votes. Thus, an innominate jury is consistent with the requirements of Rule 23.3. In view of the history of these rules and § 21-312, we reject petitioners’ claim that Judge Dickerson erred in relying on § 21-312(B) to utilize an innominate jury.³

¶9 In sum, our statutes and rules generally require a trial court to keep juror records and biographical information private. See § 21-312(B) ; Ariz. R. Sup. Ct. 123(e)(10). Juror names, except for the names on the master list, are presumptively private unless release is "required by law or ordered by the court," § 21-312(A), including when they are "disclosed in open court," Ariz. R. Sup. Ct. 123(e)(10). Use of an innominate jury, wherein juror names are not disclosed in open court, is therefore authorized under Arizona law.

¶10 Having concluded that the respondent judges’ use of innominate juries was authorized by Arizona law, we must consider whether such a practice violates the First Amendment as petitioners argue. See Falcone Brothers & Assocs. v. City of Tucson , 240 Ariz. 482, ¶ 11, 381 P.3d 276 (App. 2016) (court does not reach constitutional claim if case may be resolved on other grounds). In Press-Enterprise Co. v. Superior Court ( Press-Enter. I ), the United States Supreme Court addressed the First Amendment right to "a complete transcript of the voir dire proceedings" in a criminal trial.

464 U.S. 501, 503, 509 n.8, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). The Court recited an extensive history of the process of juror selection, which it described as "presumptively ... a public process with exceptions only for good cause shown," id. at 505–08 & 505, 104 S.Ct. 819, and described various benefits of an open process, id. at 508–10, 104 S.Ct. 819. It then concluded the trial court's denial of access to the transcript had been overbroad and the court had failed to adequately justify its order. See id. at 513, 104 S.Ct. 819.

¶11 A few years later, the Supreme Court returned to First Amendment questions in a case in which a trial court sealed the transcript of a preliminary hearing in a criminal matter. Press-Enter. Co. v. Superior Court (Press-Enter. II ), 478 U.S. 1, 3–5, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). In that decision, the Court set forth a two-part test for addressing First Amendment claims in the context of access to court proceedings. First, a court must consider "whether the place and process...