Morgan v. Dickerson

• Citation: 253 Ariz. 207,511 P.3d 202
• Decision Date: 14 June 2022
• Docket Number: CV-21-0198-PR
• 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, Respondent Judges, and The State of Arizona, Real Party in Interest.
• Court: Arizona Supreme Court

253 Ariz. 207

511 P.3d 202

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, Respondent Judges,andThe State of Arizona, Real Party in Interest.

No. CV-21-0198-PR

Supreme Court of Arizona.

Filed June 14, 2022

Evan Stele (argued), Sergey Harutyunyants, Rule 39(c) Certified Law Students, Jacob M. Karr, Gregg P. Leslie, Rule 39(c) Supervising Attorneys, First Amendment Clinic, Public Interest Law Firm, Sandra Day O'Connor College of Law, Phoenix, Attorneys for David Morgan

Mark Brnovich, Arizona Attorney General, Marjorie S. Becklund (argued), Assistant Attorney General, Tucson, Attorneys for Respondent Judges Dickerson and Cardinal

Brian M. McIntyre, Cochise County Attorney, Michael A. Powell (argued), Deputy County Attorney, Bisbee, Attorneys for State of Arizona

Roopali H. Desai, Andrew T. Fox, Coppersmith Brockelman PLC, Phoenix, Attorneys for Amicus Curiae The Reporters Committee for Freedom of the Press

Mark Brnovich, Arizona Attorney General, Jeffrey Sparks, Acting Chief Counsel, Capital Litigation Section, Ginger Jarvis, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General

VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL and JUSTICES LOPEZ, BEENE, MONTGOMERY, and KING joined. JUSTICE BOLICK concurred.

VICE CHIEF JUSTICE TIMMER, opinion of the Court:

¶1 The superior court in Cochise County uses "innominate juries" for all criminal jury trials. Under that procedure, prospective and impaneled jurors are referred to by numbers rather than by names throughout open-court proceedings, although the court and the parties know their identities. Consequently, although voir dire examinations and trials are open for public viewing, observers are not provided jurors’ names absent order of the court.

¶2 The issue here is whether the First Amendment to the United States Constitution prohibits the court's routine use of innominate juries. Specifically, we are asked to decide whether the First Amendment provides the public a qualified right of access to jurors’ names during voir dire, thereby creating presumptive access to those names that can be overcome only on a case-by-case basis by showing both a compelling state interest and that denying access is a remedy narrowly tailored to serve that interest. We hold the First Amendment does not prohibit the court's practice.

BACKGROUND

¶3 This matter arises from two criminal cases that used innominate juries without objection by either party. In each case, journalist David M. Morgan intervened and unsuccessfully sought access to prospective and impaneled jurors’ names before and after trial.¹ On special action review, the court of appeals consolidated the cases and upheld the rulings. Morgan v. Dickerson , 252 Ariz. 14, 15–16 ¶ 1, 496 P.3d 793, 794–95 (App. 2021). In doing so, the court rejected Morgan's arguments that the Cochise County Superior Court's innominate jury system is not authorized under Arizona law and violates the First Amendment. See id. at 17 ¶ 9, 18 ¶¶ 12–13, 496 P.3d at 796, 797.

¶4 Morgan sought review of the court of appeals’ opinion but only as it concerns the First Amendment challenge. We accepted review because the constitutionality of the innominate jury system is a recurring issue of statewide importance.

DISCUSSION

I.

¶5 Arizona law provides that "[t]he list of juror names or other juror information shall not be released unless specifically required by law or ordered by the court." A.R.S. § 21-312(A) ; see also Ariz. R. Sup. Ct. 123(e)(10) (stating that juror-identifying information obtained in juror questionnaires or during voir dire is confidential "unless disclosed in open court or otherwise opened by order of the court"); Ariz. R. Crim. P. 23.3(b) (requiring the court to refrain from naming jurors when polling the jury "to ensure the jurors’ privacy"). Nevertheless, Morgan argues the First Amendment provides a qualified right of public access to jurors’ names during voir dire, which creates a presumption of access that can be overcome only if a compelling state interest exists in a particular case to shield the names, and denying access is a narrowly tailored remedy to serve that interest. Consequently, he asserts the superior court's presumptive use of innominate juries in all cases violates the First Amendment.

¶6 It is worth noting that despite strained efforts to view his First Amendment argument as consistent with § 21-312(A), Morgan effectively challenges that statute's facial validity. If the First Amendment right attaches, it creates a presumption for access that can be overcome only by a compelling interest in secrecy. Section 21-312(A) creates an inverse presumption—prohibiting disclosure unless affirmatively required by law or court order. These presumptions cannot coexist. If Morgan is correct, application of § 21-312(A) would violate the First Amendment in every circumstance, making it facially unconstitutional. See State v. Wein , 244 Ariz. 22, 31 ¶ 34, 417 P.3d 787, 796 (2018) (stating that a statute is facially unconstitutional if "no set of circumstances exists under which the [statute] would be valid" (quoting United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) )). As the challenging party, Morgan "bears the ‘heavy burden’ of demonstrating that the restriction [in § 21-312(A) ] is facially unconstitutional." See id. at 26 ¶ 10, 417 P.3d at 791 (quoting Salerno , 481 U.S. at 745, 107 S.Ct. 2095 ).

¶7 We review whether the First Amendment guarantees the press and public a qualified right of access to jurors’ names during voir dire de novo as an issue of constitutional law. See Fann v. State , 251 Ariz. 425, 432 ¶ 17, 493 P.3d 246, 253 (2021).

II.

A.

¶8 The First Amendment, as applied to Arizona through the Fourteenth Amendment, prohibits the state from "abridging the freedom of speech, or of the press." U.S. Const. amend. I. It does not explicitly guarantee the press or public access to a criminal trial. Cf. U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." (emphasis added)); Gannett Co. v. DePasquale , 443 U.S. 368, 379–80, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (holding the Sixth Amendment public trial guarantee is personal to the accused). But because the First Amendment "was enacted against the backdrop of the long history of trials being presumptively open," Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 575, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality opinion), to "enhance[ ] both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system," Press-Enter. Co. v. Superior Court (Press-Enterprise I ), 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), and the explicit guarantees of free speech and a free press necessitate the ability to gather information by observing proceedings, the First Amendment implicitly guarantees the press and public a coextensive right to attend criminal trials, Richmond Newspapers , 448 U.S. at 575–77, 580, 100 S.Ct. 2814 ; see also Globe Newspaper Co. v. Superior Court , 457 U.S. 596, 606, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) ("And in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.").

¶9 The access right guaranteed by the First Amendment is not absolute, but qualified. See Globe Newspaper , 457 U.S. at 606–07, 102 S.Ct. 2613. Criminal trials are presumptively open to the public, and the court can close the proceedings only if the state shows a compelling state interest for doing so and that closure is a remedy narrowly tailored to serve that interest. See id.

¶10 The Supreme Court has identified two complementary considerations for deciding whether the First Amendment affords the public a qualified right to access criminal proceedings through attendance or by obtaining transcriptions of those proceedings. Press-Enter. Co. v. Superior Court (Press-Enterprise II ), 478 U.S. 1, 8, 13, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). First, courts should ask "whether the place and process have historically been open to the press and general public" (the experience inquiry). Id. at 8, 106 S.Ct. 2735. Second, courts should ask "whether public access plays a significant positive role in the functioning of the particular process in question" (the logic inquiry). Id. If both inquiries yield affirmative answers, the right attaches. See id. at 9, 106 S.Ct. 2735 ; see also Baltimore Sun Co. v. Goetz , 886 F.2d 60, 64 (4th Cir. 1989). Applying these considerations, the Court has held that the First Amendment guarantee of qualified public access attaches to criminal trials, see Richmond Newspapers , 448 U.S. at 580, 100 S.Ct. 2814, voir dire examinations, see Press-Enterprise I , 464 U.S. at 508–10, 104 S.Ct. 819, and trial-like preliminary hearings, see Press-Enterprise II , 478 U.S. at 13, 106 S.Ct. 2735.

¶11 Morgan conflates the right to attend voir dire with a right to access juror names. They are far from the same thing. Here, the public was not barred from attending any part of the criminal trials, including voir dire, so the most essential press and public right is not implicated. But the Supreme Court has not addressed whether the First Amendment guarantee of qualified public access to voir dire examinations extends to learning jurors’ names. Regardless, Morgan argues that failing to disclose jurors’ names essentially bars the public from attending part of the voir dire examinations. Consequently, he asserts we should apply the experience and logic inquiries to determine whether the First Amendment guarantees the public a qualified right of access to those names.

¶12 The experience and...