Phoenix Newspapers, Inc. v. Superior Court In and For County of Maricopa

• Decision Date: 30 December 1993
• Docket Number: No. 1,CA-SA,1
• Citation: 180 Ariz. 159,882 P.2d 1285
• Parties: , 22 Media L. Rep. 1531 PHOENIX NEWSPAPERS, INC., Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Ronald S. Reinstein, a judge thereof, Respondent Judge, STATE of Arizona, Real Party in Interest. 93-0234.
• Court: Arizona Court of Appeals

Page 1285

882 P.2d 1285

180 Ariz. 159, 22 Media L. Rep. 1531

PHOENIX NEWSPAPERS, INC., Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Ronald S. Reinstein, a judge thereof, Respondent Judge STATE of Arizona, Real Party in Interest.

No. 1 CA-SA 93-0234.

Court of Appeals of Arizona Division 1, Department D.

Dec. 30, 1993.

Review Denied Nov. 1, 1994. ^*

[180 Ariz. 160] Scult, Lazarus, French, Zwillinger & Smock, P.A. by James F. Henderson and Patricia A. Sallen, Phoenix, for petitioner.

Richard M. Romley, Maricopa County Atty. by Arthur Hazelton and John R. Ditsworth, Phoenix, for real party in interest.

OPINION

GRANT, Judge.

The petitioner, Phoenix Newspapers, Inc. ("PNI"), filed this special action requesting this court to determine whether Ariz.Rev.Stat.Ann. ("A.R.S.") section 13-3918(A) (1989) requires the real party in interest, the State of Arizona ("the state"), to disclose all search warrants and affidavits after they have been served even before a criminal case is filed. This issue is one of first impression in Arizona. We accept jurisdiction because there is no equally plain, speedy, and adequate remedy by appeal. Rule 1, Ariz.R.P.S.A. By order dated October 12, 1993, we accepted jurisdiction and denied relief with this opinion to follow.

FACTS

The Glendale Police and the Maricopa County Attorney obtained and executed search warrants in the investigation into the murder of a young woman reputed to be a former girlfriend of Phoenix Suns player Jerrod Mustaf. For that reason, the investigation achieved a high public profile. The respondent, Judge Ronald S. Reinstein, in his capacity as presiding criminal judge, sealed the search warrants and the search warrant affidavits after they were served and returned. PNI and other media requested that the documents be unsealed. Judge Reinstein denied this request. Subsequent to this denial, redacted copies of the supporting affidavits, a narrative of facts and three property slips detailing items found during the execution of the warrants were released to the media.

DISCUSSION

I. THE STATUTE

PNI claims the trial court was without jurisdiction to redact the search warrant documents and did so in violation of the clear language of A.R.S. section 13-3918(A), which reads as follows:

A search warrant shall be executed and returned to the issuing magistrate within five days after its date. Upon expiration of that time, the warrant, unless executed, is void. The documents and records of the court relating to the search warrant need not be open to the public until the execution and return of the warrant or the expiration of the five day period after issuance. Thereafter, if the warrant has been served, such documents and records shall be open to the public as a judicial record.

Prior to the 1970 amendment, this statute read:

A search warrant shall be executed and returned to the magistrate who issued it within ten days after its date. After the expiration of that time, the warrant shall, unless executed, be void.

PNI states that the cardinal rule of statutory interpretation is to determine and give effect to the legislative intent behind the statute. Calvert v. Farmers Ins. Co., 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985). In construing a statute, we look at the language as the most reliable evidence of the legislature's intent. State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 594, 667 P.2d 1304, 1309 (1983). PNI takes the position that the legislative intent is clear on the face of this statute, and that the intent is to make search warrants and affidavits open to the public after the warrants are executed and returned. The word "shall" usually indicates a mandatory provision. Matter of Guardianship of Cruz, 154 Ariz. 184, 185, 741 P.2d 317, 318 (App.1987). Furthermore, PNI argues, the legislature, by amending the statute, intended to change existing law rather than perform a futile act. Lake Havasu City v. Mohave County, 138 Ariz. 552, 558, 675 P.2d 1371, 1377 (App.1983). If there were any question about the status of these types of documents as public records, the legislature intended to dispel it by explicitly amending the statute in 1970. PNI states that had the legislature intended that judges have the power to withhold or redact these documents, it would not have enacted such an explicit amendment.

At first blush, PNI's analysis is inviting. This case hinges on the interpretation of the final clause of A.R.S. section 13-3918(A): "such documents and records shall be open to the public as a judicial record." (emphasis added). Does this clause mandate the public release of search warrant documentation or should it be interpreted as permissive? The word "shall" certainly implies a mandatory provision. But what is mandated? In this context, what is mandated is that the documents and records be open to the public "as a judicial record."

This is where we disagree with PNI's argument. The phrase "open to the public" is self explanatory, but the meaning of the phrase "as a judicial record" is not so apparent. If possible, courts should give meaning to all the language used in a statute and avoid an interpretation that renders a term either duplicative or meaningless. Wiseman v. Arizona Highway Dep't ex rel. Campbell, 11 Ariz.App. 301, 303, 464 P.2d 372, 374 (1970). Therefore, "as a judicial record" must mean something different than simply "open to the public."

PNI's argument would require that this court ignore the existence of the phrase "as a judicial record." The words of a statute should be given their ordinary meaning unless it appears from the context that a special meaning was intended. Mid Kansas Fed. Sav. & Loan Ass'n v. Dynamic Dev. Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991). The phrase "as a judicial record" interpreted as simply labeling a search warrant to be a court record would duplicate A.R.S. section 13-3911 which defines a search warrant as "an order ... signed by a magistrate...." This interpretation would also ignore the ordinary meaning of the word "as." In this context, the ordinary meaning of "as" is "in or to the same degree in which" or "in the way or manner that." Webster's Ninth New Collegiate Dictionary 106 (1984). Applying this definition to the last clause of section 13-3918(A) reveals the following interpretation: search warrants shall be open to the public to the same degree and in the way or manner that other judicial records are open to the public.

II. THE DEGREE, WAY, AND MANNER JUDICIAL RECORDS ARE OPEN TO THE PUBLIC.

To apply this interpretation of the statute, one must determine to what degree and in what way or manner judicial records are open to the public. The parties cite only one Arizona case addressing public release of judicial records, Phoenix Newspapers, Inc. v. Superior Ct., 140 Ariz. 30, 680 P.2d 166 (App.1983). This case is controlling on this point. In Phoenix Newspapers, newspaper publishers challenged a trial court's refusal to release transcripts of an in camera hearing. This court recognized that a presumption exists requiring that information received by the court be open to the public. Id. at 35, 680 P.2d at 171. The state also has a legitimate interest in protecting ongoing investigations. Id. Therefore, Phoenix Newspapers held that the trial court must balance this presumption of openness against the need of the state to keep confidential that information which might jeopardize ongoing criminal investigations. ¹ Id.

The 1970 amendment to section 13-3918(A) codified these same public policy concerns. First, courts may refrain from publicly disclosing search warrant documentation until the warrant is executed and returned. Second, after execution and return of the warrant, a presumption of openness exists which prevails unless other countervailing interests outweigh the presumption.

PNI argues that allowing the trial court, in the exercise of its discretion, to withhold the records from public disclosure would render the 1970 amendment futile. We can presume from the legislature's amendment of the statute that the legislature intended to change the existing law rather than perform a futile act. Lake Havasu City, 138 Ariz. at 558, 675 P.2d at 1377.

Inherent in PNI'S argument is the proposition that if the statute were permissive as opposed to mandatory it would be a futile statute. We disagree. The permissive nature of a statute, with nothing more, does not render a statute futile.

III. SEPARATION OF POWERS

Further support for this permissive interpretation of A.R.S. section 13-3918(A) can be found in the doctrine of separation of powers embodied in the Arizona Constitution. "[I]f the statute is susceptible to two interpretations, one of which renders it unconstitutional, we must adopt the interpretation favoring its validity." Lake Havasu City, 138 Ariz. at 558, 675 P.2d at 1377. If we adopt the mandatory interpretation argued by PNI, we would have to conclude that the statute violates the separation of powers provisions of the Arizona Constitution. Accordingly, we reject the mandatory interpretation in favor of a permissive and therefore constitutional interpretation.

Article III of the Arizona Constitution states:

The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.

This sharp separation of powers must be carefully preserved by the courts so that one branch of government is not permitted to encroach upon functions properly belonging to another branch. State v. Jones, 142 Ariz. 302, 304, 689 P.2d 561, 563 (App.1984). The determination of whether a statute contravenes the constitutional mandate of separation of powers requires u...