Gershon v. Broomfield

642 P.2d 852, 131 Ariz. 507, 1982 Ariz. LEXIS 173

• Court: Arizona Supreme Court
• Decided: February 19, 1982
• Docket: 15780-SA
• Status: Published

Opinions

GORDON, Vice Chief Justice:

The sole issue presented in this special action is whether the Attorney General may subpoena witnesses and documents before the state grand jury without the prior consent of the grand jury. Taking jurisdiction pursuant to Ariz.Const. Art. 6, § 5(1), we hold that the Attorney General has no such power.

Without the state grand jury’s consent, an assistant attorney general signed and sent a subpoena to petitioner on October 22, 1981 ordering that he appear before the state grand jury and that he bring with him certain documents. Petitioner’s motion in superior court to quash the subpoena was denied by respondent judge. The judge relied in part on an October 23, 1978 order he made in his capacity as assignment judge for the state grand jury. The order permits the Attorney General or an assistant attorney general to issue state grand jury subpoenas without the prior consent of the grand jury provided the grand jury and assignment judge are notified within ten days of the issuance.

The Attorney General has no common law powers; whatever powers are possessed by the holder of that office must be found in the Arizona Constitution or in the Arizona statutes. Amphitheater Unified School District No. 10 v. Bret Harte, 128 Ariz. 233, 624 P.2d 1281 (1981); see Arizona State Land Department v. McFate, 87 Ariz. 139, 348 P.2d 912 (1960). Those powers cannot be expanded by order of the state grand jury’s assignment judge. If the 1978 order and the assistant attorney general’s actions in the instant case are valid, authority for them must be found elsewhere.

There is no such authority. In Article 5, § 9, the Arizona Constitution clearly states that the powers of the Attorney General “shall be as prescribed by law.” The law concerning the Attorney General’s powers vis-á-vis the state grand jury are found in A.R.S. § 21-421 et seq. Section 21-427(C) provides: “The attorney general or his designee shall have authority to issue subpoenas in furtherance of matters cognizable by a state grand jury in accordance with the provisions of [§ 13-4071 et seq.] * * *.” Whatever subpoena powers the Attorney General has, therefore, are found in A.R.S. § 13 — 4071 et seq.

Section 13-4071(B) states:

“The subpoena may be signed and issued:

* * * * * *

“2. By the [prosecutor] for witnesses for the prosecution, or for such other witnesses as the grand jury upon an investigation pending before it may direct, or for witnesses on an indictment or information to appear before the court in which the indictment or information is to be tried.” ¹

It should be noted that this statute deals with the issuance of subpoenas in all criminal procedures. Our reading of the statute gives the prosecutor power to issue subpoenas in these instances: (1) in the prosecutor’s discretion, witnesses for the trial or for any related proceeding in a criminal case; and (2) at the grand jury’s direction, witnesses for a grand jury investigation. Thus, § 13-4071(B)(2) requires the Attorney General to obtain the consent of the state grand jury before issuing grand jury subpoenas.

When the grand jury statutes are. read as a whole, we believe this is the intended interpretation of A.R.S. §§ 21 — 427(C) and 13-4071(B)(2). A.R.S. § 21-422(A) declares, “The law applicable to county grand juries, including their powers, duties and functions, shall apply to the state grand juries except insofar as it is in conflict with this article.” State grand jury law, therefore, parallels county grand jury law. A.R.S. § 21 — 427(A), pertaining to state grand juries, directly refers to the county grand jury statutes: “The attorney general or his designee shall attend the state grand jury in the manner prescribed by § 21-408.” Section 21-408, which enumerates the powers and duties of the county attorney assisting the county grand jury, states that inter alia, the county attorney “shall also, when requested by [the grand jury], * * * cause process to issue for the attendance of witnesses and other evidence.” (Emphasis added.)

The Legislature has expressed an intent that the rules governing state grand juries should be generally the same as those governing county grand juries. A.R.S. § 21-427(A) explicitly states that the member of the Attorney General’s office attending the state grand jury has the same responsibilities as the member of the county attorney’s office attending the county grand jury. It is clear that § 21-408 allows the county attorney to subpoena grand jury witnesses only with the grand jury’s prior consent. Given this framework, we can find no legitimate reason to allow the person attending the state grand jury unlimited subpoena power when the person attending the county grand jury must first obtain that grand jury’s consent.

We are not the first Court to so interpret the prosecutor’s subpoena power. When California’s subpoena statute was essentially identical to A.R.S. § 13-4071(B)(2),² it was also construed as prohibiting the prosecutor from issuing grand jury subpoenas without the consent of the grand jury. Ex parte Peart, 5 Cal.App. 469, 43 P.2d 334 (1935). The California court reasoned that the power to initiate and control inquiries into public offenses rests with the grand jury and not the prosecutor. Hence, only the grand jury can direct what witnesses will appear before it.

The Attorney General argues that Mar-ston’s, Inc. v. Strand, 114 Ariz. 260, 560 P.2d 778 (1977), stands for the proposition that the Attorney General does not need the state grand jury’s consent before subpoenaing grand jury witnesses.³ We disagree. We are unable to find any statement in the majority opinion of the case that so holds, even inferentially.

It is true that the prosecutor has wide discretion in fulfilling his or her role in assisting the grand jury. See Marston’s, Inc., supra. But these powers are derived from the grand jury; it is the grand jury that possesses the broad investigative powers, and it is the grand jury that must be the decisionmaker as to how to exercise those powers. For the reasons stated in the separate opinion in Marston’s, Inc., we hold that before subpoenaing witnesses or evidence before the state grand jury, the Attorney General must obtain the consent of that grand jury.

“The very fact that the Legislature passed the grand jury bill indicates that the Legislators intended to interpose the citizen members of the grand jury between the government prosecutor and the individual suspected of wrongdoing. Some states have statutes allowing the Attorney General to investigate on his own, e.g. Ark.Stats. §§ 43-801 — 43-803 (1964). That our Legislature did not choose that path shows that they wished the grand jury to play its traditional role as a shield, protecting the innocent from ill-founded prosecution and harassment.”

Marston’s, Inc., 114 Ariz. at 267, 560 P.2d at 785 (specially concurring in part and dissenting in part) (footnote omitted). It must be remembered that in our system, it is the grand jury that directs inquiries into public crimes. The prosecutor’s duty is to assist the grand jury in its investigations; the prosecutor may not exercise dominion over those investigations by evading the grand jury’s will.⁴

It may be noted that federal prosecutors routinely exercise the power sought by the Attorney General herein. They may do so, however, because the United States Congress and Supreme Court have allowed it by the generalized wording of Rule 17, Federal Rules of Criminal Procedure, and because caselaw supports it. E.g., In re Grand Jury Proceedings, 486 F.2d 85 (3d Cir. 1973); United States v. Kleen Laundry & Cleaners, Inc., 381 F.Supp. 519 (E.D.N.Y.1974). Perhaps it is because of past abuses of this authority in federal investigations that our Legislature in its wisdom chose by more restrictive legislation not to allow state and county prosecutors to investigate on their own initiative before obtaining justification from the organ of government entrusted with the power to conduct and supervise that investigation.

Lest this interpretation of statutes be construed to be a serious hindrance to law enforcement, let us not lose sight of the fact that prosecution for felony crimes in Arizona may be commenced by either of two alternate methods (whereas federal prosecutions are limited to one — indictment, U.S.Const, amend. V). Ariz.Const. art. 2, § 30; A.R.S. § 11-532(A); A.R.S. § 21-427(B); Rule 2.2, Arizona Rules of Criminal Procedure. The grand jury proceeds in secret until an indictment is returned, filed, and served. See A.R.S. §§ 13-2812, -2813. The finding of probable cause that supports the indictment is arrived at largely without judicial supervision, under more relaxed rules of evidence, and with the grand jury normally hearing only one version of the transaction. See Rule 12, Arizona Rules of Criminal Procedure. If the prosecutor chooses the other course of prosecution, by information, a complaint laid before a magistrate requires a finding of reasonable cause before issuance of process, and the defendant will not be bound over to the superior court for trial without a magistrate’s finding of probable cause after a preliminary hearing. See Rule 5, Arizona Rules of Criminal Procedure. At the preliminary hearing, the accused may be present, be represented by counsel, and confront and cross-examine witnesses; the accused also has a qualified right to testify on his or her own behalf and to compel witnesses to testify on behalf of the defense. Rule 5.3(a), Arizona Rules of Criminal Procedure. All these constitutional rights are not afforded to the accused under the grand jury method of prosecution until after the accused has a public record of felony accusation. If the prosecutor chooses the shorter, easier route — that of grand jury prosecution — it seems reasonable that he or she at least take the time to ask the grand jury for authority to subpoena witnesses.

Therefore, the assistant attorney general in this case acted in excess of his authority when he issued the subpoena to petitioner on October 22, 1981. Furthermore, respondent judge’s October 23, 1978 order permitting such action is invalid. We reverse the order of respondent judge that denied the motion to quash the subpoena, and we order the subpoena to petitioner to be quashed.

Prayer for relief granted.

CAMERON, J., concurs.

1 . Although the statute refers only to the subpoena of “witnesses,” we have interpreted this to include both subpoenas ad testificandum and duces tecum. Marston’s, Inc. v. Strand, 114 Ariz. 260, 560 P.2d 778 (1977).

2 . In 1935, Cal.Penal Code § 1326 stated in part:

“The process by which the attendance of a witness before a court or magistrate is required is a subpoena; it may be signed and issued by: * * * 2. The district attorney, for witnesses in the state, in support of the prosecution, or for such other witnesses as the grand jury, upon an investigation pending before them, may direct. 3. The district attorney, for witnesses in the state, in support of an indictment or information, to appear before the court in which it is to be tried. * * *”

3 . This apparently was the authority for the Attorney General’s request that led to respondent judge’s 1978 order granting the Attorney General authority to issue grand jury subpoenas without the grand jury’s consent.

4 . We realize that the assistant attorney general in the instant case was motivated by efficiency rather than malice towards petitioner. Presently, the state grand jury meets only once a month, and it may cause some inconvenience to obtain its consent one month before a witness may appear before it or to call it into session more often only to obtain consent for subpoenas. We need not decide today whether the process can be streamlined, e.g., by the grand jury allowing the foreperson alone to consent to the issuance of a subpoena.