Marston's, Inc. v. Strand

560 P.2d 778, 114 Ariz. 260, 1977 Ariz. LEXIS 254

• Court: Arizona Supreme Court
• Decided: January 21, 1977
• Docket: 12859, 12867
• Status: Published

Opinions

HOLOHAN, Justice.

The Attorney General for the State and Marston’s, Inc. and one of its officers have filed special actions challenging certain orders of the superior court regulating the production of documents before the state grand jury.

On July 27, 1976, the Attorney General issued and had served subpoenae duces tecum on Marston’s, Inc. and John N. Norris, its vice president and custodian of records, requiring the production of certain Marston’s corporate records before the state grand jury. Compliance was to be made by producing the records either on August 3, 1976, at the grand jury room of the old superior courthouse in Phoenix or on July 30, 1976, at the Attorney General’s investigations division. Marston’s and Norris filed motions to quash or, alternatively, to have a protective order issued prohibiting the Attorney General from impounding any subpoenaed records.

The assignment judge for the state grand jury assigned the matter to Judge Roger Strand of the Maricopa County Superior Court who denied the motion to quash, ordered that compliance was to be made only at the grand jury room and prohibited the impoundment of any subpoenaed documents by the Attorney General. Norris then produced the subpoenaed materials but refused a request by the Attorney General to take the documents to the latter’s offices. In a clarification order Judge Strand ordered the Attorney General to make all inspections during normal business hours at the grand jury room location after which time the documents were to be returned to the custodian each day. The new order specifically denied the Attorney General’s request to retain the subpoenaed records for a one-week period.

Following the clarification order Norris produced the required records and the Attorney General removed them from the grand jury room to his investigations division’s office. The records were returned to Marston’s at the end of the business day. When Norris next complied with the subpoenas he objected to the absence of the grand jurors and thereafter filed a Petition for Relief seeking to bar the Attorney General from removing the subpoenaed materials from the grand jury room. Judge Strand supplemented his earlier order to allow the inspection of the records outside the presence of the grand jurors, but continued to require such inspections to be made at the grand jury room during normal business hours with their return to the custodian at the end of each day.

After Judge Strand’s last order, Marston’s and Norris filed a special action with this court challenging the Attorney General’s authority to issue a subpoena duces tecum and claiming that the retention and inspection of the subpoenaed records violated their Fourth Amendment rights. The Attorney General filed a special action arguing that Judge Strand had exceeded his jurisdiction and abused his discretion by placing limits upon the manner in which the Attorney General could inspect the subpoenaed materials. Since both petitions raise similar issues we have consolidated them for the purpose of this decision.

Essentially three issues are raised by these special actions.

1. Does the Arizona Attorney General have authority to issue a subpoena duces tecum in a state grand jury proceeding?

2. Did the retention and inspection of Marston’s corporate records, produced pursuant to a subpoena duces tecum, constitute an illegal search and seizure in violation of the Fourth Amendment?

3. Did Judge Strand exceed his jurisdiction and abuse his discretion in limiting the mariner in which the subpoenaed records could be inspected by the Attorney General?

AUTHORITY FOR SUBPOENA DUCES TECUM

Petitioners Marston’s and Norris argue that the Attorney General is not empowered to subpoena documents in a state grand jury proceeding; that the statutes limit the power of the Attorney General to compelling the attendance of witnesses before a state grand jury. We do not agree.

The authority for issuing and serving subpoenas in a state grand jury proceeding is set forth in A.R.S. § 21^27(C) which states:

“The attorney general or his designee shall have authority to issue subpoenas for witnesses statewide for a state grand jury in accordance with Title 13, Article 3, Chapter 7.” (Emphasis supplied.)

The applicable section of Title 13, Article 2, Chapter 7, authorizing the issuance of criminal subpoenas is A.R.S. § 13-1821 which reads:

“A. The process by which attendance of a witness before a court or magistrate is required is a subpoena.

“B. The subpoena may be signed and issued:

“1. By a magistrate before whom a complaint is laid for witnesses, either on behalf of the state or defendant.

“2. By the county attorney 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.

“3. By the clerk of the court in which an indictment or information is to be tried.

“C. The clerk shall, at any time, upon application of defendant, and without charge, issue as many blank subpoenas, subscribed by him as clerk, for witnesses as the defendant requires.” (Emphasis supplied.)

Petitioners Marston’s and Norris argue that the term “for witnesses” limits the authorized subpoena power to a subpoena ad testificandum and does not allow for the issuance of a subpoena duces tecum. We do not believe that such a restricted interpretation of the Attorney General’s subpoena power is warranted.

Although we recognize the differences between a subpoena ad testificandum and a subpoena duces tecum we believe that the term “for witnesses” as used in the criminal code and A.R.S. § 21-427(C) includes both. We note that petitioners’ interpretation of the questioned language would contravene a long-standing history of issuing subpoenas seeking documentary evidence in criminal matters and would also preclude any defendant in a criminal case from issuing a subpoena duces tecum. We are of the opinion that the term “subpoena for witnesses” is to be interpreted in a generic sense and includes “any subpoenas necessary to accomplish the intentions of the statute.” Davis v. Lehigh Valley Railroad Co., 97 N.J.L. 412, 117 A. 716 (1922). The language used embraces both a subpoena ad testificandum and a subpoena duces tecum. In re Saperstein, 30 N.J.Super. 373, 104 A.2d 842 (1954); In re Bick, 82 Misc.2d 1043, 372 N.Y.Supp.2d 447 (1975). The form of the subpoena advises a witness whether he is required to appear merely to testify or bring specific documents.

We conclude that the Attorney General had the authority to issue the subpoena for the production of documents by Marston’s and Norris.

CLAIMS OF ILLEGAL SEARCH AND SEIZURE

Counsel for Marston’s and Norris contend that the order of the superior court, last issued, which in effect allows the Attorney General or his representatives “to rummage through Marston’s books and records at its leisure, outside the presence of the Grand Jury” was a violation of Fourth Amendment rights. Counsel argue that the Attorney General by use of a subpoena duces tecum has nullified the safeguards of the Fourth Amendment. The position of counsel ignores the role of the grand jury in our constitutional system. The same Constitution which provides Fourth Amendment rights also provides for a grand jury system.

The grand jury system is an investigative body acting independently of either prosecutor or judge whose mission is to bring to trial those who may be guilty and clear the innocent. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). In order that it carry out its mission the grand jury has a right to every man’s evidence except for those persons protected by a constitutional, common law, or statutory privilege. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). A subpoena to appear before a grand jury is not a “seizure” in the Fourth Amendment sense. United States v. Dionisio, supra. There are, however, limitations to the power of the grand jury. The grand jury cannot require a witness to testify against himself, nor may it require the production by a person of private books and records that would incriminate him. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906).

A subpoena, authorized by law, requiring the production of corporate records and papers before a grand jury affords no Fifth Amendment protection against self-incrimination to either the corporation or the officers of the corporation. Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946). The Fourth Amendment provides protection against a grand jury subpoena duces tecum which is too indefinite or too sweeping in its terms to be regarded as reasonable. United States v. Dionisio, supra; Oklahoma Press Pub. Co. v. Walling, supra.

We have held that the issuance of the subpoena was authorized by law. It required the production of corporate records before the grand jury. The subpoena was not challenged as indefinite or “too sweeping to be regarded as reasonable.” The challenge has been limited to the use being made of the documents by the grand jury and the Attorney General. From the authorities cited we believe that the grand jury has the power to retain records presented to it pursuant to a subpoena duces tecum, and that body may review the records personally or have others review the records. This latter point involves an issue in which both parties disagree with the order of the superior court.

DISCRETIONARY CONTROL OF THE SUBPOENA DUCES TECUM

As we have pointed out, the grand jury’s investigatory powers are very broad. Counsel for Marston’s and Norris argue that the superior court abused its discretion in allowing the Attorney General to retain and inspect subpoenaed records during normal business hours. The Attorney General, however, contends that the superior court abused its discretion in limiting the rights of retention and inspection. The Attorney General urges that he should be allowed to take the records to his office for unrestrained inspection. The Attorney General points out that the Rules for State Grand Juries provide that any records presented to and considered by the state grand jury must be held thereafter by that body. Rule 5, Arizona Supreme Court Rules for State Grand Juries, 112 Ariz. XCV (1976).

The superior court has made an attempt to accommodate all parties involved. While such accommodation is commendable, any restraints on a grand jury investigation must be carefully scrutinized.

A grand jury witness is not entitled to set limits to the investigation which the grand jury may conduct. Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919). The burden is on the witness to show that there is a violation of constitutional rights or an abuse of the grand jury process. Because the task of the grand jury is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. Branzburg v. Hayes, supra. The power to subpoena witnesses is essential to carry out its task.

The power of the grand jury is not unlimited, and that power is subject to judicial control. United States v. Dionisio, supra; Branzburg v. Hayes, supra. The scope of judicial control is necessarily limited so that there is a balance between the constitutional purpose of the grand jury and the constitutional rights of witnesses. A grand jury investigation must not be frustrated or impeded by minitrials and preliminary showings.

“The grand jury may not always serve its historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor, but if it is even to approach the proper performance of its constitutional mission, it must be free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.” United States v. Dionisio, 410 U.S at 17, 93 S.Ct. at 773, 35 L.Ed.2d at 81.

The superior court has jurisdiction to grant appropriate relief to a witness subpoenaed to appear before a grand jury when the witness has made a preliminary showing that the action of the grand jury is in violation of his constitutional rights, oppressive, abusive, or unlawful. When such a showing is made by the witness the superior court may require additional proceedings to deal with the matters so presented.

In the case at issue it is safe to assume that the grand jury is incapable of analyzing the corporate records produced by the witness. To understand the material brought before them, the grand jury must have the records reviewed by persons familiar with accounting who can make an analysis and report the results to the grand jury. The order of the superior court limiting inspection to the vicinity of the grand jury room and requiring the return of the records to the corporation each evening is a restriction on the grand jury in its investigation. Absent a proper showing such as abuse or oppression the superior court may not restrict a grand jury investigation. Had there been some claim that the records under subpoena were records used daily in the business of the corporation there might be some necessity for relief. No such showing or claim was made in this case.

The suggestion is made that the restriction in this case is not on the grand jury but on the prosecutor. This position ignores the necessary role which the prosecutor occupies in the grand jury system. It is the duty of the prosecutor, whether it be a county attorney or attorney general, to serve the grand jury. A.R.S. § 21—408 and § 21-427(A). Generally the prosecutor presents the evidence, prepares the indictments, and advises the grand jury on legal matters. In performing these functions wide latitude is given to the prosecutor. This freedom is given not to accommodate the prosecutor but to assist the grand jury in carrying out its investigations. After a witness appears before the grand jury, he may be required to leave with the grand jury any physical evidence which was produced. The prosecutor may take custody of such evidence for the grand jury. In addition the prosecutor may inspect and review the evidence. He must preserve the secrecy of testimony and evidence presented before the grand jury. A.R.S. § 21-234(B). To further assist the grand jury in understanding the evidence, the prosecutor may secure the assistance of investigators, accountants, and other experts to inspect and review the evidence. These experts are subject to the prohibition against disclosure of evidence presented to a grand jury. The better practice is to have the experts sworn as witnesses before the grand jury. A restriction on the presentation of evidence by the prosecutor is in fact a restriction on the grand jury and its right to receive evidence on criminal matters.

We have held that the subpoenaed material did not violate any constitutional rights, and there is no showing of any oppression. The challenged order of the superior court is set aside. The Attorney General should be allowed to inspect and examine the records presented to the grand jury without interference by the superior court or the custodian of the records.

Relief denied in part, granted in part.

STRUCKMEYER, V. C. J., and HAYS, J., concur.