State of Arizona v. Hon. Jeffrey T. Bergin, Hon. Danielle Liwski Remington

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
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,
and
RYAN TAYLOR REMINGTON,
Real Party in Interest.
No. 2 CA-SA 2023-0078
Filed December 19, 2023
Special Action Proceeding
Pima County Cause No. CR20223150001
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL
Laura Conover, Pima County Attorney
By Chris Ward, Deputy County Attorney, Tucson
Counsel for Petitioner
Natasha Wrae PC, Tucson
By Natasha Wrae
and
STATE v. HON. BERGIN
Opinion of the Court
Law Office of Michael W. Storie, Tucson
By Michael Storie
Counsel for Real Party in Interest
OPINION
Judge Gard authored the opinion of the Court, in which Presiding Judge
Eppich and Chief Judge Vásquez concurred.
G A R D, 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
1The state seeks special-action relief as to both Presiding Judge
Jeffrey Bergin and Judge Danelle Liwski, who initially ordered the grand
jury transcript’s release. But we reversed Judge Liwski’s order in a previous
special action in this matter. State v. Liwski, No. 2 CA-SA 2023-0032, ¶ 16
(Ariz. App. May 16, 2023) (mem. decision). We therefore do not address
the state’s arguments as to that ruling.
2Trebus v. Davis, 189 Ariz. 621, 625-26 (1997) (requiring prosecutor to
advise grand jury of defendant’s request to appear or to present clearly
exculpatory evidence).
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STATE v. HON. BERGIN
Opinion of the Court
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 Ҥ 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 (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
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Opinion of the Court
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 (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 (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,
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STATE v. HON. BERGIN
Opinion of the Court
249 Ariz. 143, ¶¶ 6-7 (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 (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
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Opinion of the Court
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 (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 decision rested”); Powell-Cerkoney v. TCR-Montana Ranch Joint
Venture, II, 176 Ariz. 275, 278 (App. 1993) (“The doctrine referred to as ‘law
of the case’ describes the judicial policy of refusing to reopen questions
previously decided in the same case by the same court or a higher appellate
court.”).
¶16 At oral argument, the state urged this court to exercise its
discretion and not apply the law-of-the-case doctrine. See Associated
Aviation Underwriters v. Wood, 209 Ariz. 137, ¶ 40 (App. 2004) (describing
law of the case as discretionary, procedural doctrine, rather than
substantive limitation). But the state identifies no change in the facts,
issues, or law that would warrant disregarding law of the case here. See
Stauffer, 240 Ariz. 575, ¶ 15.
¶17 Instead, as the state acknowledged at oral argument, it
posited in the previous special action what it now contends was a
“mistaken reading” of § 21-411(A). In that proceeding, the state conceded
that § 21-411(A) “confer[s] 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,” although the statute was “silent as to the proper reasons for
such preparation . . . or disclosure to any party.” We interpreted the statute
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STATE v. HON. BERGIN
Opinion of the Court
consistent with the state’s concession, but the state now contends that its
analysis, as well as ours, was erroneous.
¶18 As a general rule, “‘a party who has assumed a particular
position in a judicial proceeding is estopped to assume an inconsistent
position in a subsequent proceeding involving the same parties and
questions’” when that party “gained judicial relief” in the previous
proceeding. State v. Towery, 186 Ariz. 168, 182, 183 (1996) (quoting Martin
v. Wood, 71 Ariz. 457, 459 (1951)). This court proceeded in view of the state’s
argument in the previous special action and we granted the state relief;
therefore, in the interest of protecting “the integrity of the judicial process,”
the state is judicially estopped from advancing a different interpretation
now. Id. at 182; see also Powell-Cerkoney, 176 Ariz. at 278.
¶19 But even were we to reconsider § 21-411’s meaning in light of
the state’s changed position, we would reach the same conclusion. When
interpreting statutes, we “effectuate the text if it is clear and unambiguous.”
Windhurst v. Ariz. Dep’t of Corr., __ Ariz. __, ¶ 13, 536 P.3d 764, 769 (2023)
(quoting BSI Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, ¶ 9 (2018)).
We “interpret statutory language in view of the entire text, considering the
context and related statutes on the same subject.” Id. (quoting Molera v.
Hobbs, 250 Ariz. 13, ¶ 34 (2020)); see also Shifflette v. Marner, 255 Ariz. 538,
¶ 7 (App. 2023) (“As this case involves the intersection of multiple statutes,
we construe them together, seeking to give meaning to all provisions.”
(quoting State v. Francis, 243 Ariz. 434, ¶ 6 (2018))). And “[w]e seek ‘to
harmonize statutory provisions and avoid interpretations that result in
contradictory provisions.’” Columbus Life Ins. Co. v. Wilmington Tr., N.A.,
255 Ariz. 382, ¶ 11 (2023) (quoting Lagerman v. Ariz. State Ret. Sys., 248 Ariz.
504, ¶ 35 (2020)).
¶20 The state’s argument that we must read the final sentence of
§ 21-411(A) to modify the preceding sentence is inconsistent with the
statute’s clear and unambiguous text. See Windhurst, __ Ariz. __, ¶ 13, 536
P.3d at 769. The provision’s final sentence directs that “reporter’s notes
which are not transcribed” are to be impounded and “transcribed” only on
order from the presiding judge. § 21-411(A) (emphasis added). The
previous sentence, however, describes circumstances in which a “transcript
or a portion of the transcript” may be denied to the defendant. Id. (emphasis
added). The statute’s penultimate sentence thus applies to reporter’s notes
that have already been transcribed, while its final sentence—by its plain
terms—applies only to reporter’s notes that have not yet been transcribed.
Because § 21-411(A) requires reporter’s notes to be transcribed as a matter
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Opinion of the Court
of course upon an indictment’s return, the circumstance addressed in the
statute’s final sentence arises when an indictment has not been returned,
not when a defendant has been denied an already existing transcript.
¶21 Further, although § 21-411(A) does not expressly address
disclosure of a grand jury transcript, we must read it in view of the broader
statutory framework protecting grand jury secrecy. See Windhurst, __ Ariz.
__, ¶ 13, 536 P.3d at 769; Shifflette, 255 Ariz. 538, ¶ 7. That framework
includes § 13-2812(A), which criminalizes disclosure of any grand jury
testimony, subject to three exceptions, and is not limited to proceedings that
result in indictments:
A person commits unlawful grand jury
disclosure if the person knowingly discloses to
another the nature or substance of any grand
jury testimony or any decision, result or other
matter attending a grand jury proceeding,
except in the proper discharge of official duties,
at the discretion of the prosecutor to inform a
victim of the status of the case or when
permitted by the court in furtherance of justice.
¶22 Assuming the automatic preparation and disclosure of a
grand jury transcript following an indictment in accordance with
§ 21-411(A)’s requirements constitutes disclosure “in the proper discharge
of official duties,” § 13-2812(A)’s separate exception for court-authorized
disclosure “in furtherance of justice” broadly contemplates additional
circumstances in which a transcript may be released with court approval.
In fact, that provision would be unnecessary if a grand jury transcript could
only be released to the state and defendant under § 21-411(A)’s automatic
procedures. See Nicaise v. Sundaram, 245 Ariz. 566, ¶ 11 (2019) (“A cardinal
principle of statutory interpretation is to give meaning, if possible, to every
word and provision so that no word or provision is rendered
superfluous.”).
¶23 As our discussion above shows, although the legislature has
enacted a statutory scheme preserving grand jury secrecy, it has not enacted
substantive laws that prohibit the superior court from ordering a no-bill
transcript disclosed. To the contrary, the statutory scheme contemplates
some disclosure when necessary to further justice. We thus decline to
revisit our previous conclusion that the presiding judge has authority—on
an appropriate showing—to order disclosure of a grand jury transcript
even when an indictment has not been returned. See §§ 21-411, 13-2812(A).
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Opinion of the Court
II. Required Showing
¶24 We now turn to the state’s argument that Remington failed to
make the “required showing” to receive the grand jury transcript. Because
this issue involves a question of law, we review it de novo. See State v.
Burgess, 245 Ariz. 275, ¶ 19 (App. 2018).
¶25 Quoting State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 332
(1964), the state maintains that Remington was required to “show a
‘particularized need’ that the transcript must be disclosed ‘in the
furtherance of justice.’” For his part, Remington did not challenge this
standard in his response to the petition for special action. But at oral
argument, he suggested he need only show that the transcript’s release
would be “in the furtherance of justice,” without also showing a
particularized need.
¶26 Thus, the parties seemingly agree that, at a minimum, an
unindicted individual seeking his grand jury transcript must make a
threshold showing that the requested disclosure would further justice. This
standard is consistent with § 13-2812(A), which, as previously discussed,
exempts from criminal liability disclosure of protected grand jury
information when a court determines that disclosure would further justice
and anticipates that grand jury disclosure may be necessary outside the
scope of § 21-411’s automatic provisions.
¶27 The “in furtherance of justice” language has long appeared in
our statutes and procedural rules, and our supreme court interpreted its
meaning in Ronan. The court specifically addressed former Rule of
Criminal Procedure 107, which was part of a larger scheme controlling
grand jury secrecy and, as relevant here, grand jury transcripts. Ronan,
95 Ariz. at 323-24, 330-32. In contrast to the modern § 21-411, the rules and
statutes in place when our supreme court decided Ronan did not provide
for grand jury transcripts to be disclosed—even to indicted defendants—as
a matter of course. See id. at 325 (“It is clear that the defense, at least in
advance of trial, is not entitled to a complete transcript of the grand jury
testimony . . . .”). But Rule 107 allowed a court to authorize disclosure “in
the furtherance of justice.” Id. at 323. Further, § 21-234, Ariz. Code Ann.
(1956), provided a criminal penalty for violating Rule 107’s restriction.
These provisions largely mirrored § 13-2812’s prohibition on disclosing
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Opinion of the Court
witness testimony, including its exception for disclosure upon court
permission “in the furtherance of justice.”3
¶28 Interpreting Rule 107, our supreme court first noted that
“[t]he reference to the ‘furtherance of justice’ . . . must . . . be read in the light
of the general public interest in preserving grand jury secrecy.” Ronan,
95 Ariz. at 324-30. Relying in part on Pittsburgh Plate Glass Co. v. United
States, 360 U.S. 395 (1959), which set forth a “particularized need” test, the
Ronan court directed that a defendant’s professed need for a transcript be
balanced against societal interests in interpreting the “good cause”
standard for disclosure. Id. at 326, 332. It emphasized that a defendant was
“not entitled to a transcript of testimony of any witness solely because he
wants to find out what the witness said.” Id. at 332. And it continued: “To
grant him such privilege is not in the ‘furtherance of justice’ because the
public interest in preservation of secrecy out weig[hs] the defendant’s
interest in discovery.” Id.; cf. State v. Huffman, 222 Ariz. 416, ¶ 13 (App.
2009) (discussing meaning of “interests or furtherance of justice” and
explaining it requires consideration of defendant’s constitutional rights
against societal interests).
¶29 Ronan thus dictates that the in-furtherance-of-justice
assessment requires a person who is not entitled to a transcript as a matter
of course—such as any defendant under the former rules, or, under the
current rules, an individual the grand jury declined to indict—to show
“facts and circumstances” demonstrating a “particularized need” that
would authorize the court to make a transcript available in the furtherance
of justice.4 95 Ariz. at 332. And the court should order the transcript only
3When the modern rules of criminal procedure and revised statutes
were adopted in the late 1970s, the legislature repealed §§ 21-234 and 13-544
and replaced them with §§ 13-2812 and 13-2813. See 1978 Ariz. Sess. Laws,
ch. 201, § 326; 1977 Ariz. Sess. Laws, ch. 142, § 90 (adding § 13-2812); 1977
Ariz. Sess. Laws, ch. 142, § 19 (moving § 13-544 to § 13-2813). Our supreme
court ultimately moved Rules 95, 106, and 107 of the Rules of Criminal
Procedure, which regulated grand jury proceedings, to Rule 12.1 and 12.7,
Ariz. R. Crim. P. Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017).
4Although the parties appear to view “particularized need” and “in
furtherance of justice” as two separate inquiries, Ronan establishes that a
defendant’s showing of a particularized need for a transcript is part of the
inquiry whether the transcript’s disclosure would be in furtherance of
justice.
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Opinion of the Court
after balancing the defendant’s need against the societal interests in grand
jury secrecy. Id. at 326, 332.
¶30 Remington has not shown a particularized need here. By his
own admission, Remington seeks the transcript “to effectively prepare a
follow-up Trebus letter” based on what was said before the second grand
jury. This is a facially invalid reason for disclosure. See Ronan, 95 Ariz. at
332 (when a defendant seeks a grand jury transcript for “discovery
purposes only, the reason or motive for requesting it becomes immaterial”
because he is not entitled to a transcript merely to determine what was
said).
¶31 Moreover, the purpose of a Trebus letter is to allow the target
of a grand jury investigation to put the state on notice of clearly exculpatory
evidence that the state must present to the grand jury.5 Willis v. Bernini,
253 Ariz. 453, ¶¶ 26-27 (2022); see also Bashir v. Pineda, 226 Ariz. 351, ¶ 22
(App. 2011). Trebus does not give such targets a preliminary right to
discover what the state’s evidence is, nor does it create a right for them to
engage in what the state here appropriately terms a “fishing expedition” by
scouring the state’s evidence in search of something helpful. Cf. State ex rel.
Adel v. Adleman, 252 Ariz. 356, ¶ 21 (2022) (party may not override privilege
to engage in fishing expedition). We have recognized that “the grand jury
proceeding is not a ‘mini trial,’” and expanding the discovery rules in the
manner Remington suggests would make it so. Hansen v. Chon-Lopez,
252 Ariz. 250, ¶ 43 (App. 2021).
¶32 Nor are we persuaded by Remington’s argument that he will
suffer prejudice absent the transcript’s disclosure. See Ronan, 95 Ariz. at
332. Remington seeks production of the second grand jury transcript solely
to determine what was said there. Even if the lack of all desired information
could be prejudicial, he already has the transcript of the first grand jury
proceeding, as well as the state’s disclosure released thereafter, including
police reports, expert witness reports, and video of the incident. Thus,
unlike other individuals for whom a grand jury has returned no indictment,
Remington has the benefit of much, if not all, of the state’s evidence.
Cf. Ronan, 95 Ariz. at 330 (“There is no more unfairness, if it is an unfairness,
5The claimed need here—essentially to explore the grand jurors’
mental processes—not only has little, if anything, to do with the purpose
stated above, but it also presumes that a third grand jury would have the
same concerns as the second.
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Opinion of the Court
to the defendants here than is the common lot of all defendants indicted by
a grand jury.”).
¶33 Moreover, any discrepancy between the testimony at the
second grand jury proceeding and the testimony at the first, or between the
testimony at the second grand jury and other parts of the state’s disclosure,
would not be proper content for a Trebus letter. See Willis, 253 Ariz. 453,
¶ 45 (observing that “a request to present evidence that only impeaches the
veracity and credibility of a witness is insufficient to invoke a prosecutor’s
obligation” to present clearly exculpatory evidence to the grand jury);
Trebus, 189 Ariz. at 625 (noting that “issues such as witness credibility and
factual inconsistencies are ordinarily for trial” and that “the grand jury is
not the place to try a case”). And even if, as Remington fears, the state’s
witness at the second grand jury proceeding divulged new facts not
contained in his prior testimony or the state’s disclosure, and those facts are
clearly exculpatory to Remington, the state would be required to present
them at a third grand jury proceeding, regardless whether Remington
submitted an updated Trebus letter. See Willis, 253 Ariz. 453, ¶¶ 25-26. The
state further agreed at oral argument that, if Remington were ever
reindicted, he could receive the second grand jury transcript for
impeachment purposes at trial.
¶34 On the other hand, as the state notes, there are significant
privacy concerns in the grand jury context. See, e.g., Samaritan Health Sys. v.
Superior Court, 182 Ariz. 219, 221 (App. 1994) (“We consistently have
recognized that the proper functioning of our grand jury system depends
upon the secrecy of grand jury proceedings.” (quoting Douglas Oil Co. v.
Petrol Stops Nw., 441 U.S. 211, 218 (1979))); State ex rel. Hastings v. Sult, 162
Ariz. 112, 114 (1989) (discussing limitations on disclosure of information
from grand jury proceedings). Secrecy insulates the grand jury from public
pressure, protects witnesses and targets of grand jury investigations, and
encourages witness cooperation. Samaritan Health Sys., 182 Ariz. at 221.
Contrary to Remington’s position, these concerns persist even when the
grand jury has not returned an indictment. See id. (“The public policy
reasons for grand jury confidentiality apply . . . to those cases in which the
grand jury reviews it and returns a ‘no bill,’ i.e. no indictment, or a ‘true
bill,’ i.e. an indictment.”). In fact, such interests are often most pronounced
in such a circumstance.
¶35 Simply put, Remington has not established that providing
him with the transcript of the second grand jury proceeding is “in the
‘furtherance of justice.’” Ronan, 95 Ariz. at 332. To the contrary, “the public
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interest in preservation of secrecy out weig[hs] [Remington’s] interest in
discovery.” Id. We “must consider not only the immediate effects upon a
particular grand jury, but also the possible effect upon the functioning of
future grand juries.” Douglas Oil Co., 441 U.S. at 222. Remington’s request
was insufficient as a matter of law, and the presiding judge erred by
concluding otherwise. See Burgess, 245 Ariz. 275, ¶ 19.
Disposition
¶36 We accept special-action jurisdiction and grant relief. We
reverse the presiding judge’s order granting Remington’s request for
release of the transcript of the second grand jury proceeding. We also deny
Remington’s request for attorney fees because he has not cited authority
supporting his request and he is not the prevailing party. See Ariz. R. P.
Spec. Act. 4(g) (“In any special action, a party may claim costs and
attorneys’ fees as in other civil actions.”); Ariz. R. Civ. App. P. 21(a)(2)
(claim for fees “must specifically state the statute, rule, decisional law,
contract, or other authority for an award of attorneys’ fees”).
13