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  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
The County further alleges that Mr. Morgan's conduct
is interfering with the plaintiff's protectable interest in enforcing
the laws of the state  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
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  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  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  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.
 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
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
Injunctive relief. The Court references the statute Arizona
Revised Statute 12-1801. "Judges of the Superior Court may grant
writs of injunction when it  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
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  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
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  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
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  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
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  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."
 "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
"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
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  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
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
"Dissemination of information relating to 
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
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  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  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  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 
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  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  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 
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
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  have to make that decision right now.