Opinion
No. 1 CA-SA 23-0055
08-01-2023
L.H. & D.L., Petitioners, v. The Honorable Lisa VANDENBERG, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, The City of Peoria, Real Party in Interest.
Legal Services for Crime Victims in Arizona, Sun City, By Jamie Balson, Counsel for Petitioners Peoria City Attorney's Office, Peoria, By Amanda C. Sheridan, Saman J. Golestan, Counsel for Real Party in Interest, City of Peoria Hallam Law Group, PLLC, Phoenix, By Josephine Hallam, Counsel for Defendant Gabriel Ballestero Apfel Law Group, Phoenix, By Seth Apfel, Counsel for Defendant Gabriel Ballestero Maricopa County Attorney's Office, Phoenix, By Krista Wood, Counsel for Amicus Curiae, Maricopa County Attorney's Office
Legal Services for Crime Victims in Arizona, Sun City, By Jamie Balson, Counsel for Petitioners
Peoria City Attorney's Office, Peoria, By Amanda C. Sheridan, Saman J. Golestan, Counsel for Real Party in Interest, City of Peoria
Hallam Law Group, PLLC, Phoenix, By Josephine Hallam, Counsel for Defendant Gabriel Ballestero
Apfel Law Group, Phoenix, By Seth Apfel, Counsel for Defendant Gabriel Ballestero
Maricopa County Attorney's Office, Phoenix, By Krista Wood, Counsel for Amicus Curiae, Maricopa County Attorney's Office
Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Paul J. McMurdie and Judge Michael S. Catlett joined.
BROWN, Judge:
¶1 Under A.R.S. § 39-127(A), a victim of a "part I crime" has the right to receive a free copy of the related police report from the investigating law enforcement agency. Crime victims L.H. and D.L. ("Petitioners") challenge the trial court's ruling that it lacked jurisdiction to consider their motion to compel the City of Peoria ("City") to give them an unredacted police report relating to crimes allegedly committed against them by Gabriel Ballestero. Because the court erred in declining to address the merits of Petitioners’ motion to compel, we accept special action jurisdiction, vacate the ruling, and remand for further proceedings.
In June 2023, the legislature amended A.R.S. § 39-127 to include a victim's right to receive a free copy of video recordings from the investigating law enforcement agency. See 2023 Ariz. Sess. Laws, ch. 190, § 39-127 (1st Reg. Sess.) (S.B. 1148). This amendment does not affect the issues raised in this special action.
BACKGROUND
¶2 After criminal charges for sexual offenses were filed against Ballestero, Petitioners requested a copy of the related police report from the City under § 39-127(A). In response, the City provided a lengthy report (at least 37 pages), but it contained substantial redactions that according to Petitioners made the report unintelligible. The City denied Petitioners’ subsequent request for an unredacted copy of the report.
¶3 In Ballestero's pending criminal case, out of which this special action arises, Petitioners moved to compel the City to provide them with an unredacted report. To explain their standing and appearance before the trial court, Petitioners relied on A.R.S. § 13-4437(A), which gives crime victims the right to seek an order, bring a special action, or appear in an appellate proceeding to address "any right guaranteed to victims." See A.R.S. § 13-4437(A). Petitioners argued that without an unredacted report they cannot effectively consult their counsel, determine how to confer with the prosecution, and assert "all other rights afforded to them as victims."
According to the City, the police report discusses two victims who are not represented by Petitioners’ counsel and are not parties to this special action. The City also suggests that Petitioners are minors and thus entitled to "enhanced protections" under public records laws. Petitioners counter that none of the victims listed in the report are minors; regardless, Petitioners do not object to the City's redaction of personal identifying information of any witness to the alleged crimes. See A.R.S. § 39-123.01(A), (C) (prohibiting law enforcement agencies from disclosing date of birth, social security number, home or email address, phone number, or driver's license).
¶4 Citing Arizona Rule of Civil Procedure 24, the City moved to intervene in Ballestero's case to respond to Petitioners’ motion to compel. The City asserted that Petitioners’ exclusive remedy to challenge its refusal to provide an unredacted police report was to file a civil special action complaint. See A.R.S. § 39-121.02(A) (stating that a person denied access to public records "may" appeal the denial by filing a special action in the superior court). The City argued Petitioners’ motion was "procedurally improper" and the trial court lacked jurisdiction to consider it. Alternatively, the City asserted it complied with § 39-127(A) by providing Petitioners a free copy of the report and that nothing in the statute entitles victims to an unredacted copy. In response, Petitioners argued the trial court has jurisdiction to hear their motion because nothing in § 39-121.02(A) suggests it "is the only method of seeking relief on this issue." Citing Marvin Johnson, P.C. v. Myers , 184 Ariz. 98, 100, 907 P.2d 67, 69 (1995), they also argued the trial court has the same jurisdiction as every other division and judge of the superior court because the superior court of Arizona is a "single unified trial court of general jurisdiction."
¶5 The trial court denied the motion to compel, explaining the issue raised was "civil" and Petitioners had not provided "any specific legal authority to pursue this request with this Criminal Court." Instead, the court was persuaded by the City's "procedural issue," reasoning that the motion pertained to non-parties such that "who should hear the action is not before this [c]ourt at this time." Thus, the trial court did not reach the merits of the redaction dispute because it implicitly concluded it lacked jurisdiction to consider issues outside the criminal prosecution arena.
¶6 Petitioners then filed this petition for special action, naming Ballestero as the real party in interest. We issued an order substituting the City as the real party in interest and invited other interested parties or organizations to address the petition. In Ballestero's filing, he asserts the petition lacks merit because Petitioners did not try to obtain the report through other means, but he ultimately takes no position "to the extent that Petitioners seek the unredacted reports via proper channels." In its amicus brief, the Maricopa County Attorney's Office asserts that § 39-127 does not grant victims the right to a complete and unredacted report but takes no position on the jurisdiction issue.
DISCUSSION
¶7 The decision to accept or deny special action jurisdiction is discretionary. Potter v. Vanderpool , 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257, 1260 (App. 2010). The City urges us to decline jurisdiction based on laches, asserting Petitioners waited three months to challenge the trial court's ruling. But the City does not claim resulting prejudice or argue the delay was unreasonable. See Sotomayor v. Burns , 199 Ariz. 81, 83, ¶ 6, 13 P.3d 1198, 1200 (2000) (explaining laches generally bars a claim only when the delay is unreasonable and causes prejudice to the opposing party). In our discretion, we accept special action jurisdiction because Petitioners, as non-parties to the pending criminal prosecution against Ballestero, lack an equally plain, speedy, and adequate remedy by appeal. See Ariz. R.P. Spec. Act. 1(a) ; State ex. rel. Romley v. Superior Court , 184 Ariz. 409, 410, 909 P.2d 476, 477 (App. 1995) (accepting special action jurisdiction to address who can be considered a victim to exercise crime victims’ rights).
A. Interpretation of A.R.S. § 39-121.02(A)
¶8 "Any person who has requested to examine or copy public records ... and who has been denied access to or the right to copy such records, may appeal the denial through a special action in the superior court[.]" A.R.S. § 39-121.02(A) (emphasis added). Petitioners argue this statute creates a "possible, but not exclusive method of appeal of denial of a right to a police report." The City counters that when the legislature chooses to include the word "may" in a statute establishing a cause of action, its intention is mandatory, which means crime victims who seek relief from the denial of their right to a police report may only do so by filing a "civil special action."
¶9 We review questions of statutory interpretation de novo. Am. C.L. Union of Ariz. v. Ariz. Dep't of Child Safety (ACLU-AZ) , 251 Ariz. 458, 461, ¶ 11, 493 P.3d 885, 888 (2021). "In interpreting a statutory provision, we give words ‘their ordinary meaning unless it appears from the context or otherwise that a different meaning is intended.’ " Id. (citation omitted).
¶10 To determine whether the word "may," as used in § 39-121.02(A), is permissive or mandatory, we begin with the word's plain meaning. See Democratic Party of Pima Cnty. v. Ford , 228 Ariz. 545, 548, ¶ 9, 269 P.3d 721, 724 (App. 2012). Applying general principles of statutory construction, "may" indicates permissive intent. See, e.g. , City of Chandler v. Ariz. Dep't of Transp. , 216 Ariz. 435, 438, ¶ 10, 167 P.3d 122, 125 (App. 2007). Here, a plain reading of the term reveals that "may," as used in § 39-121.02(A), has the same intent. See id. ; see also Paradigm DKD Grp., LLC v. Pima Cnty. Assessor , 246 Ariz. 429, 435, ¶ 19, 439 P.3d 1210, 1216 (App. 2019) (recognizing the "plain text" of § 39-121.02(A) ). It authorizes a particular course of action (filing a special action) if a party chooses to do so. Conversely, the words "shall," "must," and "may not" typically denote mandatory provisions. Garcia v. Butler in & for Cnty. of Pima , 251 Ariz. 191, 195, ¶ 15, 487 P.3d 256, 260 (2021).
¶11 When a statute employs discretionary and mandatory terms, we generally infer that the legislature intended each term to carry its ordinary meaning. See Walter v. Wilkinson , 198 Ariz. 431, 432, ¶ 7, 10 P.3d 1218, 1219 (App. 2000) ; see also City of Chandler , 216 Ariz. at 438–39, ¶ 10, 167 P.3d at 125-26 (presuming "that the Legislature was aware of the difference between [‘may’ and ‘shall’] and meant each [term] to carry its ordinary meaning").
¶12 The City argues that "may" is not always permissive, pointing to instances when courts have construed the term as mandatory, "especially where statutes grant the right of appeal to the superior court from an administrative decision." See, e.g. , Hamilton v. State , 186 Ariz. 590, 593–94, 925 P.2d 731, 734-35 (App. 1996) (interpreting "may" as mandatory in the scheme of grievance procedures because the right to appeal requires exhaustion of administrative remedies). But those cases are not helpful here because we are not dealing with an administrative review process or remedy, and as discussed below, this dispute concerns rights that are statutorily guaranteed to crime victims.
¶13 Our interpretation is supported by A.R.S. § 39-121.02(B), which states that courts "may" award attorney fees and other costs incurred in actions related to public records requests, and if awarded, the rights of any party to recover other fees "shall" not be limited. See A.R.S. § 39-121.02(B) ; J.D. v. Hegyi , 236 Ariz. 39, 41, ¶ 6, 335 P.3d 1118, 1120 (2014) (explaining that words in statutes should not be read in isolation from the context in which they are used). The legislature included both "may" and "shall" as directives in § 39-121.02, and we presume it was aware of the difference between the two terms, intending that each term will carry its ordinary meaning. See A.R.S. § 39-121.02(A), (B) ; Arpaio v. Citizen Pub. Co. , 221 Ariz. 130, 133, ¶ 9, 211 P.3d 8, 11 (App. 2008) (reasoning that when "the legislature has specifically included a term in some places within a statute and excluded it in other places, courts will not read that term into the sections from which it was excluded") (internal quotation and citation omitted).
¶14 Interpreting "may" as permissive is also consistent with our supreme court's decision in ACLU-AZ . Although addressing a different aspect of this same statute, the court held that an award of attorneys’ fees sought under § 39-121.02 is an "available remedy for any action brought under the applicable title." 251 Ariz. at 463, ¶ 23, 493 P.3d at 890. The court explained that "a variety of ‘actions’ can be brought under this article that do not require the filing of a special action[,]" and thus limiting the "applicability of § 39-121.02(B) only to special actions unreasonably restricts access to this remedy." Id. at ¶¶ 22–23. The City argues the "existence of other valid causes of action does not affect the exclusive nature of the statutory cause of action," but we are not persuaded by the City's attempt to narrow the supreme court's interpretation of § 39-121.02.
¶15 Similarly, restricting how crime victims may seek to enforce their entitlement to receive a copy of a police report would unreasonably limit their ability to enforce their rights under the Victims’ Bill of Rights ("VBR") and its related legislation. See Ariz. Const. art. 2, § 2.1 ; A.R.S. § 13-4418 ; Hegyi , 236 Ariz. at 42, ¶ 14, 335 P.3d at 1121 (implementing VBR legislation must be "liberally construed to preserve and protect the rights to which victims are entitled") (citation omitted). We construe "may," as used in § 39-121.02(A), to be permissive. The statute provides a non-exclusive method by which a party may seek relief from the denial of a public records request. That means Petitioners did not have to file a special action complaint to seek an order compelling disclosure of an unredacted police report under § 39-127(A).
B. Jurisdiction to Hear the Motion to Compel
¶16 The parties disagree on whether the trial court (in this case, the criminal division of the superior court) has jurisdiction to consider and rule on a motion that may typically be viewed as a civil matter. The City argues that even if § 39-121.02(A) is permissive, "nothing in the public records law authorizes or requires a civil public records statutory matter to be heard and/or resolved in an unrelated criminal case." The City contends that a criminal court lacks jurisdiction to use discovery rules "meant for parties in an action, to remedy a violation or denial of unrelated civil statutory duties." ¶17 The City's arguments fail to recognize that Arizona's superior court is a "single unified trial court of general jurisdiction." Marvin Johnson, P.C. , 184 Ariz. at 102, 907 P.2d at 71. Within this system exist specialized trial departments, such as criminal and civil. Id. That we "sometimes refer to these departments as courts does not make them discrete courts." Id. Instead, these departments are merely "in-house administrative mechanisms" that do not affect the jurisdiction of the superior court as an entity. Id. ; Peterson v. Speakman , 49 Ariz. 342, 348, 66 P.2d 1023, 1029 (1937) (explaining that the superior court is an "entity" and its separation into divisions is "purely imaginary and for convenience only"). Thus, a superior court judge has the power, generally, to hear and determine any case or controversy and may issue all writs necessary to the complete exercise of its jurisdiction. A.R.S. § 12-123 ; State v. Payne , 223 Ariz. 555, 559, ¶ 8, 225 P.3d 1131, 1135 (App. 2009). But while the court's power is broad, it may not hear matters that have been carved out specifically by the Constitution and placed in a limited jurisdiction court. Id. at 559–60, ¶¶ 8–9, 225 P.3d at 1135-36.
In its briefing, the City has not explained with precision how the court lacks jurisdiction to hear the motion to compel. At oral argument, the City asserted the trial court lacks subject matter jurisdiction. That type of jurisdiction refers to "a court's statutory or constitutional power to hear and determine a particular type of case." State v. Maldonado , 223 Ariz. 309, 311, ¶ 14, 223 P.3d 653, 655 (2010). It is the "power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power." Sil-Flo Corp. v. Bowen , 98 Ariz. 77, 81, 402 P.2d 22, 26 (1965) (internal quotations and citation omitted).
¶18 The City has failed to address Petitioners’ reliance on A.R.S. § 13-4437, which grants crime victims "standing to seek an order, to bring a special action or to file a notice of appearance in a trial court or an appellate proceeding, seeking to enforce any right or to challenge an order denying any right guaranteed to victims." (Emphasis added.) The legislature authorized crime victims to seek an order to enforce "any" of their guaranteed rights in "a trial court," which of course includes the superior court. See id.; see also State ex rel. Montgomery v. Padilla , 238 Ariz. 560, 566, ¶¶ 21–22, 364 P.3d 479, 485 (App. 2015) (concluding that victim representatives have "standing to seek an order from the superior court pursuant to A.R.S. § 13-4437(A)"). If the legislature intended to preclude victims from seeking an order in a criminal case to enforce their rights, we presume it would have used language to that effect. See Olesen v. Daniel , 251 Ariz. 25, 28, ¶ 10, 484 P.3d 139, 142 (App. 2021) ("We will not interpret a statute as divesting the superior court of jurisdiction unless the legislature explicitly expresses that intent.").
¶19 Contrary to the City's assertions, a superior court judge has jurisdiction to hear and determine matters involving victims’ rights and access to public records. Whether those two issues intersect in the same proceeding does not mean the court automatically loses subject matter jurisdiction over one of the issues. See DiPasquale v. DiPasquale , 243 Ariz. 156, 158, ¶ 11, 403 P.3d 156, 158 (App. 2017) ("[A]ny conclusion that [Petitioners’ motion] could only be pressed in a civil proceeding was contrary to law."). For administrative purposes, a court may divide case assignments based on specific departments (civil, criminal, family, juvenile, etc.), which is common practice in Arizona's more populated counties. But to say, without statutory directive, that a court has no jurisdiction over a matter just because the judge is assigned to a particular division conflicts with the established law outlined above. See Speakman , 49 Ariz. at 348, 66 P.2d at 1029 ("The jurisdiction of the court, no matter by which judge it is exercised, is that of the whole court, and not of one judge nor division thereof."). Because Arizona's superior court is a unified court, and given the broad authority granted to crime victims under § 13-4437 to enforce their rights, the trial court is authorized to hear Petitioners’ motion to compel. See A.R.S. § 13-4418 (explaining that statutes implementing the Victims’ Bill of Rights "shall be liberally construed to preserve and protect the rights to which victims are entitled").
Similarly, § 39-121.02(A) provides that an aggrieved party may seek relief through a special action in the "superior court." Because the superior court is a single unified entity, the trial court could have also considered the Petitioners’ motion to compel, at least in this case, as the functional equivalent of a special action under the public records law.
¶20 Finally, the City contends that Petitioners erred by seeking to "use a criminal discovery mechanism available only to the parties, to compel another non-party [the City] to release public records." We reject the City's attempt to distance itself from its motion to intervene and the trial court's order granting that motion. Setting aside the question of whether the authority cited permitted such intervention, the City asked to be heard on Petitioners’ motion to compel, so it cannot avoid the consequences of that decision now that the motion needs to be resolved. Although the City is not "a party to the case," as the term is generally understood in a criminal action (i.e. , it is not seeking or defending against a prosecution), once the court granted intervention the City became a party to the proceedings relating to the motion to compel and is therefore bound by the trial court's orders.
¶21 Our conclusion—that crime victims may seek to enforce their rights in the unified superior court—does not mean a trial court has jurisdiction to issue orders against persons or entities who are not parties to the case before it. We do not address the extent to which a judge presiding over a criminal prosecution matter may enter discovery orders directed at entities, such as law enforcement agencies, that are not parties to the criminal case. Instead, our holding is based on the City's intervention in this case to address Petitioners’ motion to compel, which allows the superior court to issue such orders as it deems appropriate relating to that motion.
C. Attorneys’ Fees
¶22 We deny the City's request for attorneys’ fees because it cites no substantive authority. See Zambrano v. M & RC II LLC , 254 Ariz. 53, 66, ¶ 49, 517 P.3d 1168, 1181 (2022) (denying a request for attorneys’ fees for failure "to state the basis for the request" under ARCAP 21(a)(2) ). Given that we are granting relief to Petitioners, we deny Ballestero's request for attorneys’ fees under Arizona Rule of Civil Procedure 11. As to Petitioners’ request for fees under § 39-121.02(B), we deny the claim without prejudice. After resolving the motion to compel on the merits, the trial court may award fees to Petitioners if appropriate, including fees incurred in this special action.
CONCLUSION
¶23 The trial court erred by declining to address whether Petitioners are entitled to an unredacted copy of the police report detailing the crimes allegedly committed against them. We therefore vacate the court's ruling denying their motion to compel and remand for consideration of the motion's merits and any related issues.