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Phoenix Newspapers, Inc. v. Reinstein

Court of Appeals of Arizona, First Division

August 11, 2016


         Petition for Special Action from the Superior Court in Maricopa County No. CR2014-128973-001 The Honorable Peter C. Reinstein, Judge

          Ballard Spahr LLP, Phoenix By David J. Bodney, Heather Todd Horrocks Counsel for Petitioners

          Maricopa County Public Defender's Office, Phoenix By Angela L. Walker, Bobbi Falduto Counsel for Real Party in Interest Moran

          Judge Randall M. Howe delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Andrew W. Gould joined.


          HOWE, Judge

         ¶1 Phoenix Newspapers, Inc. and John D'Anna (collectively, "PNI") seek special action relief from the trial court's order denying its motion to quash a subpoena duces tecum. PNI argues that because the affidavit accompanying the subpoena for D'Anna's interview notes did not satisfy Arizona's Media Subpoena Law, A.R.S. § 12-2214, PNI was not required to disclose the information to Gary Michael Moran, the real party in interest. Specifically, and as relevant to our disposition of this special action, PNI argues that Moran has not exhausted all available sources for the information and that the information is protected by Arizona's Media Shield Law, A.R.S. § 12-2237, and the First Amendment to the United States Constitution.

         ¶2 Special action jurisdiction is appropriate here because PNI has "no equally plain, speedy and adequate remedy by appeal, " Ariz. R. P. Spec. Act. 1(a), and the issue raised is a purely legal question of statewide importance, Matera v. Superior Court, 170 Ariz. 446, 447, 825 P.2d 971, 972 (App. 1992). Moreover, special action review is appropriate because PNI has been ordered to disclose what it claims is privileged information. See Azore, LLC v. Bassett, 236 Ariz. 424, 426 ¶ 2, 341 P.3d 466, 468 (App. 2014). Consequently, we accept jurisdiction, and because Moran has not satisfied the Media Subpoena Law's requirements to compel disclosure by PNI, we grant relief and vacate the trial court's order.


         ¶3 The State has charged Moran with first-degree murder of Fr. Kenneth Walker and aggravated assault against Fr. Joseph Terra, both on June 11, 2014. A year after the incident, on June 11, 2015, and also on December 25, 2015, D'Anna authored and The Arizona Republic published two articles about Fr. Terra and the incident. The first article detailed Fr. Terra's celebrating a Mass. for Fr. Walker and the second detailed Fr. Terra's choice to forgive the assailant.

         ¶4 According to defense counsel's affidavit accompanying the subpoena, she contacted D'Anna on December 28, 2015, requesting "a copy of any notes taken during his interviews or meeting with Father Terra." D'Anna declined to provide any notes or to say whether any notes existed. Counsel subsequently subpoenaed D'Anna to appear in court and to produce, as relevant, "any and all electronic communications, written notes, audio, visual, or otherwise memorialized documentary evidence related to Father Joseph Terra's interview" concerning the articles.

         ¶5 In the same affidavit, counsel avowed, as relevant, that she had been unable to obtain the items either from D'Anna or his legal representative and that "[o]nly Mr. D'Anna [was] in possession of the information . . ., either memorialized in notes or merely remembered." Counsel also avowed that "[statements about the offense, including but not limited to, what happened, the quality of Father Terra's memory, the extent of his injuries, his feelings about the events, and any other information about the offense [were] relevant and material to Mr. Moran's defense." Counsel further avowed that the notes sought were not protected by any lawful privilege and that the subpoena was not intended to interfere with rights protected by the First Amendment to the United States Constitution or Article 2, Section 6, of the Arizona Constitution.

         ¶6 PNI moved to quash the subpoena, arguing that the affidavit did not comply with the Media Subpoena Law. Under that statute, a party wishing to subpoena information from a member of the news media must provide an affidavit that, among other things, avows that the affiant has tried to obtain the information from all other available sources and that the information is not lawfully privileged. A.R.S. § 12-2214(A). PNI argued that these requirements were not met because Moran had not tried to interview Fr. Terra to obtain the information and because the notes were protected by the Media Shield Law, the First Amendment, and Article 2, Section 6.

         ¶7 Specifically, PNI argued that the affidavit could not overcome the privilege afforded to reporters by the Media Shield Law, which protects "the source of information procured or obtained by" a journalist. A.R.S. § 12-2237. PNI contended that the Media Shield Law protects not only a reporter's source but also the information a source gives a reporter in confidence. It argued that some of the information Fr. Terra disclosed to D'Anna was disclosed in confidence and therefore protected by the Media Shield Law. PNI further contended that the affidavit could not overcome the First Amendment's qualified journalist's privilege, which protects the identity of sources and a source's information from compelled disclosure unless the party seeking discovery shows that he has exhausted all reasonable alternative sources to obtain the information and the information is noncumulative and actually relevant. See Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) ("Shoen II"). Moran responded that the affidavit complied with the Media Subpoena Law; that the Media Shield Law was inapplicable because it only protects sources, not information; and that he met the requirements for disclosure under the First Amendment.

         ¶8 After briefing and oral argument, the trial court denied PNI's motion to quash. The court found that counsel's affidavit satisfied the Media Subpoena Law's requirements. Specifically, the court found that the affidavit provided all the information the statute required, and consequently, the affidavit was sufficient because under Bartlett v. Superior Court,150 Ariz. 178, 722 P.2d 346 (App. 1986), the affidavit must be accepted in the absence of a controverting affidavit, which PNI did not provide. The court also found that the Media Shield Law did not apply ...

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