Patchell v. State
| Decision Date | 07 November 1985 |
| Docket Number | CA-SA,No. 2,2 |
| Citation | 147 Ariz. 508,711 P.2d 647 |
| Parties | Gary PATCHELL, Petitioner, v. The STATE of Arizona, and the Superior Court of the State of Arizona, In and For the County of Pima, and the Honorable John Hawkins, a Judge Thereof, Respondents, and The STATE of Arizona, Real Party in Interest. 0292. |
| Court | Arizona Court of Appeals |
In this special action, we are called upon to determine the validity of Arizona's "use immunity" statute, A.R.S. § 13-4064, under the Arizona Constitution. Because the issue presented is one of first impression, is narrowly framed, and is of statewide importance, we accept jurisdiction. For the reasons set forth below, however, we deny relief.
On June 21, 1985, petitioner was subpoenaed to testify before the Pima County grand jury. He appeared but refused to testify, asserting his Fifth Amendment privilege against self-incrimination. The state then requested the superior court to grant the petitioner use immunity and order him to testify pursuant to A.R.S. § 13-4064. 1 Following a hearing on August 14, at which petitioner raised his constitutional objections to that statute, the state's request was granted. Pursuant to the court's order, petitioner again appeared before the grand jury on September 4, but he again refused to testify on Fifth Amendment grounds. He was brought before the court the same day, found in contempt, and committed to the county jail until he purged himself of the contempt. 2
In his petition for special action to this court, petitioner argued that § 13-4064 was beyond the power of the legislature to enact and contravened the provisions of the Arizona Constitution pertaining to the privilege against self-incrimination and transactional immunity, as well as the Due Process, Equal Protection, and Privileges and Immunities provisions of both the state and federal constitutions. The difference between use and transactional immunity is:
" 'Use immunity' prohibits witnesses' compelled testimony and its fruits from being used in any manner in connection with criminal prosecution of the witness; on the other hand, 'transactional immunity' affords immunity to the witness from prosecution for offense to which his compelled testimony relates." Black's Law Dictionary 677 (5th ed., 1979).
At oral argument petitioner withdrew all claims except those pertaining to the authority of the legislature to enact the use immunity statute. We therefore address only that issue.
Petitioner notes initially that the Arizona Constitution, as originally enacted, contained not only a prohibition against compulsory self-incrimination, Ariz. Const. Art. 2 § 10, but also a limited exception to that prohibition, Ariz.Const. Art. 2 § 19. This latter section provides:
"Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with bribery or illegal rebating, shall not be excused from giving testimony or producing evidence, when legally called upon to do so, on the ground that it may tend to incriminate him under the laws of the State; but no person shall be prosecuted or subject to any penalty or forfeiture for, or on account of, any transaction, matter, or thing concerning which he may so testify or produce evidence."
Thus, the government may compel incriminatory testimony in bribery and illegal rebating cases, but only upon a grant of complete immunity from prosecution, i.e., transactional immunity. Petitioner argues that because the drafters of the constitution specifically provided for a certain type of immunity (transactional as opposed to use immunity) and only with regard to certain designated offenses, the legislature has no authority to enact a statute providing for any other type of immunity or permitting immunity for compulsory testimony with regard to any other offenses. We disagree.
It has long been settled that "the power of the legislature is plenary and unless that power is limited by express or inferential provisions of the Constitution, the legislature may enact any law which in its discretion it may desire." Whitney v. Bolin, 85 Ariz. 44, 47, 330 P.2d 1003, 1004 (1958); see also Harris v. Maehling, 112 Ariz. 590, 545 P.2d 47 (1976). The fact that the constitution contains a self-executing provision on a particular subject, such as this one, does not prevent the legislature from acting on the same subject, so long as its statutes are "in harmony with the spirit of the constitution." Roberts v. Spray, 71 Ariz. 60, 69, 223 P.2d 808, 814 (1950). We see no conflict between the cited provisions of the constitution and A.R.S. §...
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