State of Arizona v. Hon. Kyle Bryson Gilbert Delgado

                                 IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION TWO


     STATE OF ARIZONA; MAJOR GENERAL MICHAEL T. MCGUIRE (RET.);
               MAJOR GENERAL HOWARD P. PURCELL (RET.);
         BRIGADIER GENERAL ANDREW MACDONALD (RET.); AND
                 BRIGADIER GENERAL JEFFREY L. BUTLER,
                             Petitioners,

                                    v.

    HON. KYLE BRYSON, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
              ARIZONA, IN AND FOR THE COUNTY OF PIMA,
                             Respondent,

                                   and

                           GILBERT DELGADO,
                          Real Party in Interest.

                        No. 2 CA-SA 2023-0069
                        Filed December 15, 2023


                      Special Action Proceeding
                  Pima County Cause No. C20205813


                     JURISDICTION ACCEPTED;
                     RELIEF GRANTED IN PART


                               COUNSEL

Kristin K. Mayes, Arizona Attorney General
By Christopher P. White, Assistant Attorney General, Tucson and
Rebecca A. Banes, Assistant Attorney General, Phoenix
Counsel for Petitioners
                         STATE v. HON. BRYSON
                           Opinion of the Court

Lewis & Llewellyn LLP, San Francisco, California
By Paul T. Llewellyn and Kenneth M. Walczak

and

Gregory J. Krino, Santa Monica, California
Counsel for Real Party in Interest



                                OPINION

Chief Judge Vásquez authored the opinion of the Court, in which Presiding
Judge Eppich and Judge Gard concurred.


V Á S Q U E Z, Chief Judge:

¶1             In this special-action proceeding, petitioners the State of
Arizona and officers of the Arizona Air National Guard (AZANG)
(collectively, “the state”) challenge the respondent judge’s denial of their
motion for summary judgment on real-party-in-interest Gilbert Delgado’s
claim that the state failed to comply with a clearance order entered pursuant
to A.R.S. § 13-4051. The state maintains the respondent erred by concluding
that § 13-4051 applies to more than law enforcement agencies and the
courts. Because we agree, we accept special-action jurisdiction and grant
relief in part; however, the respondent must now determine whether
AZANG is a law enforcement agency as contemplated by § 13-4051.

                   Factual and Procedural Background

¶2           The relevant facts are undisputed. Delgado was a member of
AZANG from July 2006 through April 2010. In October 2013, he was
indicted under Pima County cause number CR20134290002 for multiple
criminal counts stemming from alleged improper travel reimbursements.
However, the trial court later dismissed the indictment with prejudice at
the prosecutor’s request. 1 In November 2014, upon “[s]tipulation of the



      1 In  November 2022, Delgado paid approximately $90,000 for
overpayment of travel entitlement, after the Air Force Remissions Board
declined to dismiss his debt.


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                         STATE v. HON. BRYSON
                           Opinion of the Court

parties and the [c]ourt believing that justice will be served,” the court
entered the following order in CR20134290002:

                      It is hereby ordered, pursuant to A.R.S.
              § 13-4051, that entry of a notation that Gilbert
              Delgado has been cleared in this matter shall be
              made on all court records, police records and
              any other records of any other agency relating
              to his arrest and indictment herein.

                     The Clerk of the Court shall cause a copy
              of this Order to be delivered to all law
              enforcement agencies and Courts. All law
              enforcement agencies and Court[s] shall not
              release copies of or provide access to any
              records in this matter pertaining to Gilbert
              Delgado to any person except on Order of the
              Court.

¶3           The following month, Delgado informed AZANG of the
order. To ensure AZANG’s compliance with the order, Delgado submitted
a Freedom of Information Act request, asking for any documents related to
his 2013 indictment. He later received several documents, which he
maintains were not “properly annotated.”

¶4            In December 2020, citing § 13-4051, Delgado filed a complaint
against the state, which included a request for nearly three million dollars
in damages for failing to abide by the trial court’s order in CR20134290002.2
In November 2022, the state filed a motion for summary judgment on
several grounds. As relevant here, the state asserted that § 13-4051 does not
support a cause of action in this case because the statute “applies only to
law enforcement agencies and to courts—not to the military or to the
Arizona National Guard.” The state maintained its position was supported
by the rules of statutory construction, the statute as a whole, and legislative
intent. In response, Delgado argued that the state’s interpretation of the
statute was “so narrow as to leave [him] with no remedy whatsoever.”
Relying on what he characterizes as the plain language of § 13-4051(A),
Delgado reasoned that the state’s interpretation would make § 13-4051’s
reference to “‘records of any other agency’ meaningless surplusage.”


       2 AZANG, although initially named as a defendant in this matter,

was dismissed as a non-jural entity.


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                          STATE v. HON. BRYSON
                            Opinion of the Court

¶5            In March 2023, the respondent judge denied the state’s motion
for summary judgment. The state filed a motion for reconsideration,
arguing, in part, that the respondent had “failed to address the
substantial—and purely legal—arguments regarding the proper
interpretation of . . . § 13-4051.” Specifically, the state pointed out that the
ruling had failed to address “whether the statute even reaches non-law
enforcement agencies like the Air National Guard.”

¶6             In July 2023, the respondent judge affirmed his prior ruling.
In addressing his interpretation of § 13-4051, the respondent quoted
subsections (A) and (C) of the statute in whole. The respondent agreed with
the state that the phrase “any other agency” in subsection (A) “should be
read narrowly and specific to the context of the rest of the statute.”
However, the respondent pointed out that the state’s reading “would apply
only to courts and law enforcement agencies within Arizona, but this would
render the phrase in question pointless.” The respondent thus concluded
“the phrase in question must include some other agencies besides courts
and police,” including, in this case, the state defendants. This petition for
special action followed.

                         Special-Action Jurisdiction

¶7              Special-action jurisdiction is appropriate when a party has no
“equally plain, speedy, and adequate remedy by appeal.” Ariz. R. P. Spec.
Act. 1(a); see also Sw. Gas Corp. v. Irwin, 

 (App. 2012). “Our
decision to accept jurisdiction of a special action is highly discretionary.”
League of Ariz. Cities & Towns v. Martin, 

 (2009). We
normally disfavor accepting special-action jurisdiction to review the denial
of a motion for summary judgment. City of Scottsdale v. Mikitish, 

, ¶ 4 (App. 2022). However, exceptions exist for pure issues of law,
matters of statewide importance, and questions of first impression. Jennings
v. Agne, 

, ¶ 4 (App. 2022); Deal v. Deal, 

, ¶ 10 (App.
2021).

¶8            This special action presents a pure question of law concerning
the interpretation of § 13-4051. See State ex rel. Pennartz v. Olcavage, 

 (App. 2001). The issue presented is also one of first impression and
statewide importance. See ChartOne, Inc. v. Bernini, 

 (App.
2004). Additionally, for the reasons discussed below, the respondent judge
erred as a matter of law by denying the motion for summary judgment.
See Pima County v. McCarville, 

 (App. 2010). Finally, if we
were to decline jurisdiction, the state would be subjected to the unnecessary
expenditure of time and money associated with further proceedings.


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                           STATE v. HON. BRYSON
                             Opinion of the Court

See ChartOne, Inc., 

. For these reasons, we exercise our
discretion and accept special-action jurisdiction.

                                   Discussion

¶9             As below, the state contends that § 13-4051 “applies only to
records of law-enforcement agencies and courts” and “does not apply to
documents in AZANG’s custody.” Because this issue involves the
interpretation and application of § 13-4051, our review is de novo. See State
v. Christian, 

 (2003); Strojnik v. Gen. Ins. Co. of Am., 

 (App. 2001).

¶10            Section 13-4051 provides:

                      A. Any person who is wrongfully
               arrested, indicted or otherwise charged for any
               crime may petition the superior court for entry
               on all court records, police records and any
               other records of any other agency relating to
               such arrest or indictment a notation that the
               person has been cleared.

                      B. After a hearing on the petition, if the
               judge believes that justice will be served by such
               entry, the judge shall issue the order requiring
               the entry that the person has been cleared on
               such records, with accompanying justification
               therefor, and shall cause a copy of such order to
               be delivered to all law enforcement agencies
               and courts. The order shall further require that
               all law enforcement agencies and courts shall
               not release copies of or provide access to such
               records to any person except on order of the
               court.

                      C. Any person who has notice of such
               order and fails to comply with the court order
               issued pursuant to this section shall be liable to
               the person for damages from such failure.

The statute is directed at remedying “the ‘economic and personal harm
result[ing] to an individual if even a baseless arrest becomes known to his
employers, credit agencies, banks, or even his neighbors, notwithstanding
the absence of a conviction.’” State v. Mohajerin, 

 (App.


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                          STATE v. HON. BRYSON
                            Opinion of the Court

2010) (alteration in Mohajerin) (quoting Beasley v. Glenn, 

(1974)).

¶11             When interpreting a statute, we start with the statute’s plain
language, giving words their ordinary meaning. Secure Ventures, LLC v.
Gerlach, 

, ¶ 5 (App. 2020). If the language is clear and
unambiguous, we give it effect without resorting to our secondary rules of
statutory construction. Glazer v. State, 

, ¶ 9 (2018). However,
if the text is ambiguous, we determine the meaning “by reading the statute
as a whole, giving meaningful operation to all of its provisions, and by
considering factors such as the statute’s context, subject matter, historical
background, effects and consequences, and spirit and purpose.” State v.
Gonzales, 

 (App. 2003) (quoting Zamora v. Reinstein, 

 (1996)).

¶12            The parties disagree whether we must resort to the secondary
rules of statutory construction. The state argues that “any other agency” in
§ 13-4051(A) means “any other law enforcement agency” and “does not
encompass all agencies,” like, as relevant here, AZANG. In reaching that
conclusion, the state relies on the principle of ejusdem generis, the statute as
a whole, and legislative intent. It points out that the respondent judge
omitted subsection (B) from the § 13-4051 analysis in his ruling on its
motion for reconsideration. And the state reasons, “That omission resulted
in an erroneous interpretation of the statute’s scope because subsection (B)
most clearly defines and restricts its reach by requiring the ordering court
to deliver a clearance order only ‘to all law enforcement agencies and
courts.’” By contrast, Delgado maintains that the text of the statute is “clear
and unambiguous on its face” and that “any other agency” includes
agencies like AZANG.

¶13           The parties focus on the meaning of “any other agency,” but
they seemingly overlook the import of the full phrase, “any other records
of any other agency relating to such arrest or indictment.” § 13-4051(A).
The language, “relating to such arrest or indictment,” whether modifying
the “records” or the “agency,” limits the statute’s reach. On the one hand,
as the state argues, given the nature of an arrest and indictment, the
language can be interpreted as referring to only “law enforcement
agencies,” such as arresting and prosecuting agencies. On the other hand,
as Delgado contends—and the respondent judge concluded—the statute
can be interpreted as referring to a broader set of agencies that have any
records related to an arrest or indictment. The language of § 13-4051(A) is
susceptible to both interpretations and thus ambiguous.



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                          STATE v. HON. BRYSON
                            Opinion of the Court

¶14           Turning to our canons of statutory interpretation, the canon
of ejusdem generis “provides that general words which follow the
enumeration of particular classes of persons or things should be interpreted
as applicable only to persons or things of the same general nature or class.”
State v. Barnett, 

 (1984). For example, in the phrase,
“‘probation, parole, work furlough or any other release,’” our supreme
court concluded that because “any other release” was “preceded by the
words ‘probation, parole, work furlough,’” it must “encompass a class of
persons who have been previously convicted of a crime.” 

 (quoting
A.R.S. § 13-604.01(A)). In another case, the court had to determine the
meaning of “other legal entity” as used in “any corporation, partnership,
association, labor union or other legal entity, or any group of persons
associated in fact although not a legal entity.” Est. of Braden ex rel. Gabaldon
v. State, 

 (2011) (quoting A.R.S. § 46-455(Q)). Because
“other legal entity” followed “specifically enumerated (and generally
private) business entities,” the court concluded that “the phrase is most
reasonably interpreted as applying to such entities rather than to
governmental bodies.” Id. ¶ 13.

¶15           Here, “any other records of any other agency” follows “court
records” and “police records.” § 13-4051(A). Applying ejusdem generis, we
agree with the state that “any other agency” is most reasonably interpreted
as agencies similar in nature to courts and police, like law enforcement
agencies generally. See Law Enforcement, Black’s Law Dictionary (11th ed.
2019) (“The detection and punishment of violations of the law”; “[p]olice
officers and other members of the executive branch charged with carrying
out and enforcing the criminal law.”); see also Newman v. Maricopa County,

 (App. 1991) (functions of law enforcement agencies
include crime prevention and broader protective functions). The related
doctrine of noscitur a sociis, which requires us to determine a word’s
meaning “from the context in which it is used” and not in isolation, compels
the same conclusion. City of Surprise v. Ariz. Corp. Comm’n, 

 (2019). We decline to expand the phrase “any other agency” in
§ 13-4051(A) to include agencies “so markedly different from those the
legislature expressly included.” Id. ¶ 14.

¶16           The statute as a whole supports this interpretation of
§ 13-4051(A). See Mohajerin, 

 (reading provisions of
§ 13-4051 together to determine meaning). Subsection (B) of the statute
requires the trial court to deliver copies of an order entered pursuant to
subsection (A) to “law enforcement agencies and the courts.” It further
provides that the order must require “all law enforcement agencies and
courts” to “not release copies of or provide access to such records to any


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                          STATE v. HON. BRYSON
                            Opinion of the Court

person except on order of the court.” Id. Subsection (B) is thus focused on
“law enforcement agencies and courts.” It contains no provision for other
agencies to receive the clearance order or to maintain confidentiality.3 At
oral argument, Delgado could not explain why the legislature would so
limit subsection (B) if it had intended subsection (A) to broadly reach all
agencies, as he maintains. Because the order under subsection (B) is the
result of the petition under subsection (A), both subsections are reasonably
interpreted as covering the same agencies. See State v. Mangum, 

 (App. 2007) (“[S]ubsections of a single statute must be ‘read
together and harmonized to avoid rendering any word, clause or sentence
superfluous.’” (quoting State v. Story, 

 (App. 2003))).

¶17             The legislative history of § 13-4051 further bolsters this
interpretation of the statute. When § 13-4051 was enacted in 1973, its stated
purpose was “to prescribe authority for . . . the removal of the names of
persons wrongfully arrested or indicted from police and court records.” 1973
Ariz. Sess. Laws, ch. 126, § 1 (emphasis added). That general statement
does not articulate any intention to reach the records of all governmental
agencies. Cf. City of Phoenix v. Donofrio, 

 (1965) (we will not
“inflate, expand, stretch, or extend statute to matters not within expressed
provisions”). Moreover, when the legislature made non-substantive
amendments to the statute in 2012, the stated purpose was to limit “access
to certain records when a person is wrongfully arrested, indicted or charged
with a crime and subsequently cleared.”4 S. Fact Sheet for S.B. 1225, 50th
Leg., 2nd Reg. Sess. (Ariz. 2012) (emphasis added). Similarly, this court has
previously interpreted § 13-4051 as providing “limited relief.” Mohajerin,

. We see no reason to interpret the statute as applying to
agencies broadly, as Delgado would have us do, in light of the statute’s
limited reach. See 

¶18           In sum, § 13-4051 allows trial courts to enter orders, under
certain circumstances, requiring “law enforcement agencies and courts” to
annotate their records to reflect that individuals who were wrongfully
arrested, indicted, or charged were cleared. The respondent judge erred in


       3We express no opinion on whether a court could direct an order

entered pursuant to § 13-4051(B) to be served on more agencies than law
enforcement and the courts. The trial court in this case did not do so—its
order simply mirrored the language of § 13-4051(A).
       4In the 2012 amendment, the legislature added “or provide access to”

to the second sentence of subsection (B). 2012 Ariz. Sess. Laws, ch. 44, § 2.


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                        STATE v. HON. BRYSON
                          Opinion of the Court

concluding “any other agency” under § 13-4051(A) expanded the statute to
“include agencies, not court or law enforcement, which were involved or
related to the indictment.” Notably, we disagree with the respondent that
interpreting “any other agency” to mean “law enforcement agencies”
would “render the phrase in question pointless.” Law enforcement
agencies include more than police and the courts.

¶19            Because we have concluded that § 13-4051 applies to law
enforcement agencies and the courts, the question becomes whether the
trial court’s order in CR20134290002 required AZANG—or its officers—to
enter a notation on its records that Delgado had been cleared.5 In other
words, is AZANG a law enforcement agency? Because of his resolution of
the first issue, the respondent judge did not address this question. The
parties also did not present meaningful argument as to this point on review.
Accordingly, we direct the respondent to consider in the first instance
whether AZANG is a law enforcement agency, such that it was subject to
the clearance order in CR20134290002.

                               Disposition

¶20           For the foregoing reasons, we accept special-action
jurisdiction and grant relief in part. We vacate the respondent judge’s
denial of the state’s motion for summary judgment, and the respondent
must now consider whether AZANG is a law enforcement agency.




      5Delgado suggests that “each individual defendant” will need to be

classified to determine whether he or she is liable under § 13-4051(C).
However, he appears to be conflating the subsections of the statute. An
order under subsection (B) is directed to and restricts an agency, while
liability under subsection (C) arises based on a violation of the order.


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