[page 205 starts with Ms. Ransom ending her closing statement] and will prevent the issue of hundreds of thousands people gaining access to these materials and violating the statute in the future.
    So, Your Honor, the County has met its burden.  It has amply met its burden.  It is seeking narrow relief.  And we do ask for the February 15th order to be entered or, in the alternative, the TRO.  To the extent Your Honor would like a more detailed ruling, we will get that to you, the proposed findings.

THE COURT: Thank you, Ms. Ransom.
    First, I'm going to rule from the bench.  I want to thank Ms. Ransom on behalf of the County for a very professionally presented case on the County's behalf and very thorough work in representing the issues and the authorities.
    Mr. Morgan, I wanted to compliment you on your presentation and how well-prepared you are and how thoughtful your arguments have been to the Court.
    So this matter was well-presented to the Court.

In this particular matter, the County, as plaintiff, alleges that the defendant manages and controls the content of the Facebook website, Cochise County Record.  This is publicly available and accessible.  The County further alleges that the [206] defendant obtained a full and complete copy of the grand jury transcripts and exhibits of the proceedings completed on June 29th, 2017, in this case of State of Arizona vs. Roger Wilson in the Cochise County Superior Court Case CR 2017 516 and that the defendant, Mr. Morgan, did receive those from formal legal counsel to defendant, Roger Wilson, and that legal counsel is Mr. Wilkison.
    The County further alleges that the defendant knew that the grand jury materials are legally required to be maintained as confidential.  It further alleges that the defendant caused the full and complete transcript to be publicized by posting hyperlinks to the transcript on his Facebook page referred to previously.  The defendant has republished the transcript several times since he first published the protected materials on October 8th, 2017.
    The County further alleges that the defendant was at all times aware that the laws prohibiting his conduct -- was aware of the laws prohibiting his conduct and that he willfully disregarded those laws.
    The County further alleges that Mr. Morgan's conduct is interfering with the plaintiff's protectable interest in enforcing the laws of the state [207] of Arizona, and he is further causing actual harms, including tainting the potential jury pool related to the Wilson case, which is active and ongoing.
    And the County alleges that although it may prosecute Mr. Morgan for his misdemeanor offense or offenses, but that the prosecution will not and cannot compel the removal of the protected materials from the public sphere and that the County has no other adequate remedy.

The County seeks the following relief:
    That Mr. Morgan remove any hyperlink depiction, photograph or other means of publication of the grand jury transcripts and all exhibits thereto.  This includes the photograph of the victim that was dated June 29th, 2017, in the case of State of Arizona vs. Roger Wilson and that he remove those materials from any and all Internet sites over which he and anyone acting under his control -- that he remove those materials from any and all Internet sites over which he or anyone who is working for him has control.
    The County asks that the hyperlink depiction of the photograph and other means of publication concerning the motion for remand, including its exhibits, that was dated October 6th, 2017, in the Wilson case be removed from any and all Internet sites [208] over which the defendant or anyone acting by or for him has control.
    The County asks that the Court ensure that the grand jury transcripts and all the exhibits attached thereto in the Wilson case and in the motion for remand, including the exhibits in the motion for remand, are not be publicized to any third parties by any other means and enter an order to that effect against Mr. Morgan, and Mr. Morgan return the original and any copies of the grand jury transcript and all the exhibits attached thereto and the motion for remand in his possession, including those originals or copies he has or anyone who is acting on his behalf or within his control return those within 24 hours of the Court's order.

The defendant admits number one.  He admits that he did write the news article for the CCR in October 2017 and did publish that news story on October 8th, 2017, in a local news discussion that he moderates on his Facebook for Cochise County Courts.
    He admits that the October 2017 news story included excerpts of the grand jury transcripts along with hyperlinks for readers to view the full motion to remand and the full transcript of the grand jury proceedings; that that included the grand jury list and photographs that were part of that transcript; and he [209] made those materials available to people -- to the public over his server.
    He admits receiving and responding to County Attorney McIntyre's e-mail request to modify the news account and to remove the links to the grand jury transcript so that it was not available to the public.  The defendant, Morgan, admits becoming aware that Judge Conlogue executed an ex parte order sealing the motion to remand after it had been in the public file for ten days.
    The defendant not removing or significantly altering the news story or its links and the document images posted to his Facebook account on October 8th.
    He admits making a public records request by filing the same with the clerk to the Cochise County Board.  And he admits that by publishing the subject news account -- excuse me -- he denies that by publishing the subject news account and related documents that he has caused any demonstrable harm to the plaintiff.
    He also admits that he communicated to County Attorney McIntyre that he would not alter the news story pursuant to County McIntyre's (sic) request and would not comply with County McIntyre's request to halt public access to the court documents and believes the same, that he believed that he had broken no law.

The Court finds -- make the findings as to [210] the admissions that the defendant has made that I just recited in the record.  Those are the findings of the Court.  Based upon those admissions, the Court finds as I've said, that Mr. Morgan received what we're referring to as protected materials and that he received those from Attorney Wilkison and that he also received the motion to remand, which had been for a brief time publicly filed by the Court and that the source of the protected materials -- the sources of the protected materials from whom -- or from which Mr. Morgan got those materials.
    The Court further finds that, putting aside the sealing order of Judge Conlogue from October 16th, 2017, there are no court orders that restrict the use of the grand jury information in this case.  There is no practice -- in this county, at least, and perhaps many others, but before the Court, there are no court orders that restricted the use of the grand jury information in this case.
    The prosecutor's office has no written documented agreements with defense counsel.  When the prosecutor's office turns over grand jury material, I guess they turn it over indirectly.  But there are no documented agreements prior to between defense counsel and County Attorney with respect to grand jury materials to which defense counsel get access.
    [211] I don't -- I don't find that the statute concerning A.R.S. 13-2812, which refers to persons -- which makes exceptions for disclosure to persons who are engaged in the proper discharge of their official duties, I don't read the statute to cover defense counsel in connection with that statute.  I don't -- the statute makes an exception for the disclosure of grand jury information for persons in the proper discharge of their official duties.  I can't read this statute to make a defense -- a private defense attorney someone who is in the discharge of their official duties.  I think the common interpretation of an official duty involves someone who is a public official, someone who was either the clerk of the court, obviously a prosecutor.  It could include a court reporter, obviously, who is usually sworn and made part of the official proceedings.
    But I want to note for the record that I don't -- and I think it's important that the common use of the term "official duties" I don't believe covers a private defense attorney who is engaged in a defense, whether it's by court appointed or otherwise of a criminal defendant.

Injunctive relief.  The Court references the statute Arizona Revised Statute 12-1801.  "Judges of the Superior Court may grant writs of injunction when it [212] appears that the party applying for the writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant."
    The applicable, I think, standard which everyone agrees upon is cited at numerous places in Arizona law, but T.P.  Racing vs. Simms, 232 Ariz. 489 at 495 Court of Appeals 2013 is a recent statement of the law.
    I don't think there is any disagreement about this.  The party seeking a preliminary injunction must show a strong likelihood of success on the merits, possibility of irreparable injury if the injunction is not granted, the balance of hardship swaying in his favor of public policy favoring the requested relief.  And the critical factor is relative hardship for which the movant must show either, one, probable success on the merits and the possibility of irreparable injury or, two, the presence of serious questions in the balance of hardships tipping in his favor.
    So the County relies upon, as we've discussed at length, A.R.S. 13-2812.  And we've reviewed that language at length, which is a criminal statute, making unlawful grand jury disclosure under the terms of that statute a Class 1 misdemeanor.  There is no question [213] but that -- and I think Mr. McIntyre articulated this very well, probably better than the case law does.  There is no question but that a prosecuting agency has a legitimate and protectable interest in maintaining grand jury secrecy and confidentiality.  And those protected items are matters -- are things that are under the statute attending to the grand jury, and the Court consulted Samaritan Health System vs. Superior Court.  That is 182 Ariz. 219 at 221.  It's the Court of Appeals 1994.
    They talk about -- there about the public policy reasons for grand jury confidentiality, and they list a number of the reasons therefor.  But there is no question that grand juries can't do their work if they don't operate in secret.  They're investigating bodies.
    As Mr. McIntyre said, they may discuss and investigate persons who are later found for which there is no probable cause for a charge.  They need -- witnesses need to be able to appear and know that the persons who are participating on behalf of the State or the prosecuting agency and the grand jurors, that they are going to keep matters secret.  Investigations have to occur sometimes in secret.  And it protects witnesses.  It protects targets.  It encourages prospective witnesses to come forward.  And they have to.  It has to occur in [214] secret.
    And there is a long-established, recognizable, legitimate, and protectable interest, as was very well articulated by Mr. McIntyre, in maintaining grand jury secrecy.  I also want to state for the record that the Court found Mr. McIntyre's testimony to be very thoughtful and measured as to his role and responsibilities as a -- and why he is motivated to bring this action as he did.
    Applying the factor test that applies to the issuance of the injunction under T.P.  Racing, the Court finds that Mr. Morgan obtained -- I mean Mr. Morgan obtained the grand jury information -- that he obtained the grand jury information without breaking the law.  What he did with it, we'll talk about in a second.  But Mr. Wilkison got the grand jury information as a matter of course, and also Mr. Morgan got some of it, anyway, from a motion to remand that was, for at least some brief period of time, part of the public record.  And so he obtained -- Mr. Wilkison gave it to him.
    If Mr. Wilkison gave it to Mr. Morgan believing that Mr. Morgan was just going to give it to Mr. Wilson, but Mr. Morgan took it and opened it and used it anyway, I don't see that as a -- that reflects on what Mr. Wilkison thought.  But as I was discussing with [215] counsel, I mean, Mr. Morgan could have done what Mr. Wilkison thought and given it to Mr. Wilson, and then Mr. Wilson could have turned it over to Mr. Morgan, or his mother could have turned it over to him.
    So I don't -- and as I said, defining as I did before, I don't find that statute can be read to include a defense attorney such as Mr. Wilkison as prohibiting his disclosure of grand jury information in this case, you know, to Mr. Morgan as a violation of the statute because I don't think he is someone who is covered under the statute as someone who is accepted in the proper discharge of official duties.
    I don't think he is an official who has duties pursuant to statute.  But, anyway, Mr. Morgan got the material without breaking any law.  The statute prohibits and makes it a crime to knowingly disclose.  So he got it legally.  I mean, somebody gave it to him without breaking the law.  Mr. Wilkison had it legally.  Mr. Wilkison I think legally gave it to Mr. Morgan.  Mr. Wilkison could have given it to Mr. Wilson.  Mr. Morgan could have given it to Ms. Wilson's mother.  They could have given it to Mr. Morgan, and he obtained it legally.
    The problem with the statute that I was discussing with plaintiff's counsel is that -- the [216] problem with the statute is, as the State -- the County is interpreting it, is the reach of that statute is -- under that interpretation is so broad that it would on its face, with that interpretation, reach a substantial amount of constitutionally protected conduct and speech.
    And I think that application is overbroad.  I don't find the statute to be or hold the statute to be unconstitutional.  I don't have to reach that for purposes of ruling on a preliminary injunction request.  But when you have a penal statute that can be interpreted the way the County is seeking to interpret it, the net is cast to, I mean, a pool of persons that is just too large.  So, you know, let's say there's -- we were discussing 10,000 or 100,000 persons who now have this information about the grand jury, and if they're all aware of what this statute says, then you've got 100,000 possible violators of the law.
    In the State vs. Steiger, 162 Ariz. 138 at 141-42 in 1989 -- it's an appellate court decision from the State of Arizona -- the Court said it is "basic to our constitutional society is the concept that governmental powers should be properly restrained so that individual freedom can be reasonably exercised."
    "Penal statutes must be precise enough to clearly define the limits of that power."
    [217] "A penal statute is vague if it fails to give persons of average intelligence reasonable notice of what behavior is prohibited or is drafted in such a manner that it permits arbitrary and discriminatory enforcement."
    "The basic premise that penal statutes defining a criminal offense must not only be definite, but also not encourage arbitrary and discriminatory enforcement."
    And it references the Supreme Court case of Kolender vs. Lawson, and it says, "Although the doctrine (void for vagueness) focuses both on the actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the 'vagueness doctrine' is not actual notice, but the other principal element of the doctrine." And this is "the requirement that a legislature establish minimum guidelines to govern law enforcement.  Where the legislature fails to provide such minimal guidelines, a criminal statute may permit a 'standardless sweep [that] allows policeman, prosecutors, and juries to pursue their personal predilections.'"
    I'm not finding that that is what happened in this case.  I'm not making findings that the County Attorney here is cherry-picking Mr. Morgan and is  engaging in some kind of vendetta against him for what he [218] is writing, but the problem is -- this is the problem with the statute, is it's so -- that interpretation is so broad that it would allow that.
    I mean, if there is potentially 100,000 people out there who now are now in possession of this information and meet the plain language of the statute, consistent with the interpretation of the State, you've got, you know, 10,000, 100,000 persons who are subject to arbitrary and discriminatory enforcement.  And it doesn't give -- it's too vague to give actual notice to the common -- an average citizen of average intelligence about the scope of its coverage.
    Overlaying that analysis is also the First Amendment, and it's a speech that is protected speech.  So when I find that Mr. Morgan committed no crime in obtaining the information.  You've got it legally from Mr. Wilson by committing no crime, he got it from a publicly filed document with the clerk of the court; that is not a crime.  And then he wrote about it and disseminated it.  And that is First Amendment speech.
    Gentile, G-E-N-T-I-L-E, vs. State Bar of Nevada, 501 U.S. 1030, 1991, says that "there is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment."
    "Dissemination of information relating to [219] alleged governmental misconduct, which only last term we described" -- which is described as "speech which has traditionally been recognized as lying at the core of the First Amendment."
    And the case went on to say -- I think this is Justice Kennedy -- "The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations."
    "It would be difficult to single out any aspect of government of higher concern and importance to people than the manner in which criminal trials are conducted."
    "Public vigilance serves us well, for 'the knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power...  Without publicity, all other checks are insufficient; in comparison of publicity, all other checks are of small account."
    Obviously, this is not coverage of a criminal trial.  This is coverage of grand jury proceedings, which there is a layer of greater concern because of what I've said.  They have to be pursued to secrecy.  But nonetheless, this is the core of First [220] Amendment speech, is Mr. Morgan's right to analyze, critique, commend, criticize what he believes or maybe believed to have been governmental misconduct, be it in the grand jury or in a trial.
    This is no commentary by the Court on whether or not there was any kind of prosecutorial misconduct or anything.  That is not even before me, and I don't even have information to make a comment.  If I would, I wouldn't.  There's nothing I'm saying here should be any commentary by me on the merits or the validity of Mr. Morgan's commentary about the case.
    So you know the Gentile case talks more about the importance of court nature, central nature of First Amendment speech in connection with prosecutorial activities and prosecutorial discretion.  It says, "Our system grants prosecutors vast discretion at all stages of the criminal process.  The public has an interest in its responsible exercise."
    Again, I'm not making any kind of commentary about that that happened in this case.  I have no basis to say that.  But where an individual who is a member of the press in the Internet age legally obtains documents through no violation of the law and disseminates them -- in that's whether it's critical or not of what happened -- that's at the core of First [221] Amendment speech.  And to read the statute to include the basis for the Court to enter a prohibition and the removal of speech by Mr. Morgan would encompass not only Mr. Morgan but anyone who received Mr. Morgan's information, protected information, 10,000 persons, anyone who got it from Mr. Tim Steller, from the reporter who got it from Mr. Morgan, and all those thousands of people.  All those people obtained it legally, and they're subject to -- well, I can't read this law as to require that all citizens who come into possession of this grand jury information and come into it legally, I can't read a requirement in there that they have to obtain a court order before they disseminate it or risk being in violation -- criminal violation of the law.
    I mean, you know, to read the law the County's way, I would have to read the law to require any citizen who comes into legal possession of this information, who comes into possession of this information from any source, as having to obtain a court order in order to disseminate it or risk being subject to criminal prosecution.  And I can't read it that way and still read that it's -- or find that it's a constitutional law.
    So I don't think there is a strong likelihood that the County -- that the plaintiff will [222] succeed on the merits, given my factual findings and my reading of the law.
    In terms of irreparable injury, I mean, for better or for worse, it's out there, and it is out there en masse.  That toothpaste is out of the tube, and there's no way to claw it back.
    In terms of the ability to pick a jury and have a fair trial, yeah, it's going to be much more problematic than it would have been had this information not been disseminated, but the courts pick juries all the time and in cases for which there is substantial amount of publicity and high-profile cases.  And it can be tough and it can take awhile, but it can be done.
    But the real concern -- the real concern here -- and I don't want to close without saying it -- is, as I have said, there is an injury to the integrity of the grand jury secrecy that did occur here.  And also, obviously very concerned about the effect on the victims or -- the "victims" being the survivors of the deceased -- who saw that photograph for the first time, as I understand the testimony, on the Internet.  And that certainly, you know, is very troublesome.  I don't mean to make light of that.  And.
    I have noted that the grand jury does have to operate in secrecy and confidentiality.  It's [223] critical.  And the County Attorney did articulate those needs very -- with great measure and very thoughtful.  And there was harm to the victims in this case by virtue of that publication.  But I can't read the statute, at least for purposes of issuing a preliminary injunction, to include Mr. Morgan's conduct in this case.
    So I'm going to deny the request for a preliminary injunction with respect to the County's requested relief as I've outlined at the beginning of my ruling.

In terms of the -- well, let me step back a second.  You know, the grand jury -- maintaining the integrity of the grand jury secrecy and confidentiality in terms of forward looking, because that is a concern that you have to have and as prosecutors you have in terms of looking forward instead of backwards and trying to undo or unring the bell and putting the toothpaste back in the tube.  I don't see that a preliminary injunction or injunctive relief is necessary because I think there are other steps that the County can take in the future to plug that hole in the chicken coop that Mr. McIntyre referenced.
    You do have a hole in the chicken coop.  And you discovered it in a hard way.  But that happens.  That happens, but -- and the state law and statutes don't [224] have the kind of protections and rules that other states have.  I know the federal courts have -- the federal courts have rules of secrecy.  But I also note, for example, that federal courts have -- federal prosecutors' offices have agreements that they make defense counsel execute before they receive disclosure and grand jury material and limit -- there are agreements that defense attorneys have to enter into with prosecutors to try to -- that work to avoid these kind of problems in the future.
    And I'm sure you're looking into that.  You are a responsible person.  But it's relevant.  I'm not here to advise you how to run your office.  I -- that's -- that's not my purpose.  But the point being, for purposes of looking forward for injunctive purposes to prevent future harms of this type in this case or in other cases, there are other measures that can be taken to fill -- to close that hole in the chicken coop, and that's the only reason I bring that up.

In terms of the public records request, I -- there is a -- you know, the statute has been referenced by the County as A.R.S. 39-121.01, and it establishes a statutory scheme for a public records request.  And under Subsection (d)(2), you know, it says, "If requested, the custodian of the records of an agency [225] shall also furnish an index of records or categories of records that have been withheld and the reasons the records or categories of records have been withheld from the requesting person."
    And I'll take it as a representation that that has been done so.  Mr. Morgan has made a request.  If the County hasn't responded formally, or even if it has and denied it, then the next step is the person who has been denied the request or for whom the request has not been responded to has got to bring an action to the Court.  And that hasn't happened.  I don't think the issue is ripe for the Court's review.
    I understand the problem that you raised, Ms. Ransom, that this is -- there's potential attorney's fees if the Court -- an action is later brought, and the Court finds that somebody was denied a public records improperly or there was delay.  I get that.  And maybe that's a problem with the law.
    But I don't -- but I can't cure the problem with the law by giving what I think are advisory opinions about whether or not those -- those documents should have been disclosed.  I've got some pretty strong opinions about whether or not you were right about that or not and -- well, I'm going to leave it at that.
    I think the request was made.  If it was [226] responded to, that it is up to Mr. Morgan, if he doesn't like the response, to do something about it, and he hasn't.  So unless and until he does, I don't think that that issue is before the Court.
    So that's the ruling of the Court.

Now, again, I want to -- you did an excellent job.  I'm very impressed of how well you presented your case and your arguments and the thorough research and pleadings.
    Mr. Morgan, for someone who is a nonlawyer, you handled yourself very well and made your arguments well, especially for a nonlawyer.
    As I have said, Mr. McIntyre presented himself in a very measured and thoughtful way.  And he's got a job to do.  And I know you brought this action because you take responsibilities very seriously, and it is a serious matter.  Grand jury secrecy is and victims' rights are very serious.  And this is obviously a very serious case for your office.  So I want to commend all of you for your work in making my job easier to that extent also.
    But I've denied the preliminary injunction, so I guess you can determine, discuss amongst yourself in your office, if you want to actually ask for a trial on the merits or what you want to do next.  But you don't [227] have to make that decision right now.