This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 74

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Petitioner,

v.

THE HONORABLE TERRY L. CHRISTIANSEN, THIRD 

DISTRICT COURT; THE HONORABLE KATE A. TOOMEY,

THIRD DISTRICT COURT; THE HONORABLE STEVE L.

HANSEN, FOURTH DISTRICT COURT; THE HONORABLE W.

BRENT WEST, SECOND DISTRICT COURT; and THE 

HONORABLE ERIC A. LUDLOW, FIFTH DISTRICT COURT,

Respondents.

No. 20131107

Filed August 14, 2015

Original Proceeding in this Court

Attorneys:

Simarjit S. Gill, T. J. Tsakalos, Blake A. Nakamura,

Salt Lake City, for petitioner

Brent M. Johnson, Alison Adams-Perlac,

Salt Lake City, for respondents

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE PARRISH, and JUDGE PEARCE joined.

Due to his retirement, JUSTICE NEHRING does not participate herein;

COURT OF APPEALS JUDGE JOHN A. PEARCE sat.

JUSTICE DENO G. HIMONAS became a member of the Court on

February 13, 2015, after oral argument in this matter and, 

accordingly, did not participate. 

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 In Utah’s criminal justice system, grand jury indictments 

are rare. The vast majority of felony cases are prosecuted by 
STATE v. HON. CHRISTIANSEN

Opinion of the Court

information—that is, by a prosecutor filing charges directly in 

district court. The historical role of the grand jury is now generally 

played by the district court itself, which holds preliminary hearings 

to review the state’s evidence and reject unjustified prosecutions.

¶2 But prosecution by information may not be ideal in all 

circumstances. Recognizing this, the legislature has established

procedures for grand jury indictment as an alternative means of 

prosecution. It has not, however, given the state total discretion to 

prosecute by whatever means it wishes. Rather, a prosecutor 

wishing to prosecute by indictment must first persuade a special 

panel of five district judges that there is good cause to summon a 

grand jury. If the panel summons a grand jury, the prosecutor may 

then ask the jurors to return an indictment and charge the defendant 

without a preliminary hearing.

¶3 In the case before us, the state asked the panel to summon 

a grand jury, but the panel refused. The state now petitions this court 

for an extraordinary writ, claiming that the panel abused its 

discretion by denying the state’s request. The panel responds that its 

decisions are not subject to review by extraordinary writ and that the 

state’s petition must therefore be denied.

¶4 We agree with the state: our power to issue extraordinary 

writs does give us jurisdiction to review the panel’s decisions. But 

when we review the panel’s decision in this case, we find the state’s 

allegations to be without merit. The panel did not abuse its 

discretion, and we therefore deny the state’s petition for 

extraordinary relief.

BACKGROUND1

¶5 In October 2013, the Salt Lake County District Attorney 

(the state) filed a certification and statement of facts requesting a 

grand jury. A few days later, the grand jury panel held a hearing to 

consider the state’s request. The panel found that the state had not 

established good cause to summon a grand jury, and the state’s 

request was accordingly denied.

¶6 In December 2013, the state filed a petition for 

extraordinary relief in this court. After preliminary briefing and oral 

1 By law, the panel’s hearings are secret. UTAH CODE § 77-10a2(1)(a). This summary of facts includes only the information about 

the hearings that has been made public in order to facilitate 

litigation; it does not include the facts the state presented to the 

grand jury panel, the identity of the party or parties whom the state 

sought to indict, or the reasons the panel gave for its decision.

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argument to address various confidentiality issues, we asked the 

parties to present their arguments on the merits, instructing them to 

address three legal questions:

(1) Does the court have jurisdiction under Utah Rule of 

Civil Procedure 65B(d) to review the Panel’s “good 

cause” determination made pursuant to Utah Code 

section 77-10a-2(3)?

(2) Assuming the court has jurisdiction to consider the 

petition, what is the proper standard of review 

applicable to the panel’s “good cause” 

determinations?

(3) What is the proper scope and definition of “good 

cause” as used in Utah Code section 77-10a-2(3)? In 

addressing this question, the parties shall consider 

how the contours of “good cause” are informed by 

the proper constitutional role of the panel in 

criminal investigations, given its nature as a 

creature of statute vested by the legislature with 

authority?

STANDARD OF REVIEW

¶7 We review the panel’s decision for an abuse of discretion. 

See UTAH R. CIV. P. 65B(d)(2)(A) (allowing extraordinary relief when 

a judicial body “has . . . abused its discretion”).

ANALYSIS

I. WE HAVE JURISDICTION TO CONSIDER THE STATE’S

PETITION

¶8 The respondent judges argue that we lack jurisdiction to 

issue an extraordinary writ in this case. We disagree. Utah Rule of 

Civil Procedure 65B allows us to review the decisions of “officer[s] 

exercising judicial functions,” and we conclude that the panel 

exercises a judicial function.

A. We May Review the Decisions of Officers Exercising Judicial 

Functions

¶9 Our power to issue extraordinary writs is grounded in 

statute and in the Utah Constitution, both of which grant the 

supreme court “original jurisdiction to issue all extraordinary writs.” 

UTAH CONST. art. VIII, § 3; UTAH CODE § 78A-3-102(2). Our exercise 

of this power is regulated by rule 65B of the Utah Rules of Civil 

Procedure. Under that rule, a party may petition the court for an 

extraordinary writ if (1) it has suffered a grievance that falls into one 

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Opinion of the Court

of the categories listed in the rule and (2) “no other plain, speedy and 

adequate remedy is available.” UTAH R. CIV. P. 65B(a).

¶10 In this case, both parties agree that no other plain, speedy, 

and adequate remedy is available. [Petitioner supp. Brief (public) 2; 

Respondent supp. brief (public) 3] Neither the statute delineating 

our jurisdiction nor the statute establishing the grand jury panel 

provides for a direct appeal from the panel’s decision. See UTAH 

CODE § 78A-3-102 (supreme court jurisdiction); id. § 77-10a-2 

(establishing the grand jury panel). No other basis has been asserted 

that would permit us to hear such an appeal, and no other procedure 

has been suggested by which the state’s asserted grievance could be 

redressed. If the state is to have a remedy, it must be by 

extraordinary writ.

¶11 Therefore, the only question is whether the state has 

suffered a grievance that falls into one of the categories listed in the 

rule. The state contends that it has satisfied the requirements of Rule 

65B(d): “Appropriate relief may be granted . . . where an inferior 

court, administrative agency, or officer exercising judicial functions 

has exceeded its jurisdiction or abused its discretion . . . .” UTAH R.

CIV. P. 65B(d)(2)(A). The rule further provides that “[w]here the 

challenged proceedings are judicial in nature, the court’s review 

shall not extend further than to determine whether the respondent 

has regularly pursued its authority,” Id. 65B(d)(4), but as we have 

recently held, “[a] court wrongfully uses its judicial authority when 

it abuses its discretion.” Snow, Christensen & Martineau v. Lindberg, 

2013 UT 15, ¶ 21, 299 P.3d 1058; see also State v. Barrett, 2005 UT 88, 

¶¶ 7–26, 127 P.3d 682 (history and meaning of Rule 65B); id. ¶ 26

(“[E]xtraordinary relief is available upon a showing that the lower 

court abused its discretion . . . .”).

¶12 Whether we have authority to review the panel’s decision 

therefore depends on whether it is “an inferior court, administrative 

agency, or officer exercising judicial functions.” UTAH R. CIV. P.

65B(d)(2)(A).

B. The Panel Exercises a Judicial Function

¶13 Before addressing the question of whether summoning a 

grand jury is a judicial function, we note two important facts. First, 

the grand jury panel is composed of district court judges and 

possesses “the authority of the district court.” UTAH CODE § 77-10a2(1)(a). Second, the Utah Constitution explicitly provides that “no 

person charged with the exercise of powers properly belonging to 

one of these departments, shall exercise any functions appertaining 

to either of the others, except in the cases herein expressly directed 

or permitted.” UTAH CONST. art. V, § 1. These two facts suggest that 

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unless the panel’s function is judicial, its existence and function may 

violate the Utah Constitution.

¶14 Fortunately, we conclude that the panel’s function is in 

fact judicial. To arrive at this conclusion, we look first to the history 

of grand juries, in Utah and elsewhere, in order to shed light on the 

role the panel is intended to perform. We then look to the role the 

panel plays today, concluding that it is consistent with the other 

functions judges perform in our criminal justice system.

1. History

¶15 It is challenging to determine whether summoning grand 

juries is a judicial function in the modern sense because the grand 

jury, one of the oldest institutions of Anglo-American law, predates 

our concept of separation of powers by several centuries.2 Its 

purpose and form have changed radically and repeatedly in its 

millennium of existence,3 as have the procedures by which it is 

summoned.

2 Juries of accusation were required by the Assize of Clarendon in 

1166. JOHN H. LANGBEIN ET AL., HISTORY OF THE COMMON LAW: THE 

DEVELOPMENT OF ANGLO-AMERICAN LEGAL INSTITUTIONS 35–43 

(2009). The right to a grand jury as a safeguard against unjust 

prosecutions was established by the Statute of Westminster in 1285 

and a Statute of Edward III in 1352. Id. at 216–19. In comparison, the 

seminal argument for dividing governmental power among separate 

legislative, executive, and judicial branches—Montesquieu’s The 

Spirit of the Laws—was not published until 1748.

We are not the first court to recognize the difficulty of fitting 

the grand jury into current understandings of the separation of 

powers. In the twentieth century, federal courts sometimes called the 

grand jury a judicial institution and sometimes called it part of the 

executive branch. Niki Kuckes, The Democratic Prosecutor: Explaining 

the Constitutional Function of the Federal Grand Jury, 94 GEO. L.J. 1265, 

1274 (2006). Eventually the U.S. Supreme Court concluded that the 

grand jury “belongs to no branch of the institutional Government.” 

United States v. Williams, 504 U.S. 36, 47 (1992).

3 For example, when juries of accusation were first established, 

they did not hear evidence gathered by professional police. (There 

were no professional police.) Instead, the jurors were expected to 

arrive already informed, whether by personal knowledge or by 

rumor, about the crimes they were to charge. LANGBEIN, supra note 2, 

at 208–09.

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¶16 Originally, juries of accusation were convened by officers 

of the crown who, like the crown itself, had both executive and 

judicial powers.4 Later, juries were convened by judges. For most of 

the institution’s history, however, grand juries were necessary for all 

felony prosecutions and were therefore summoned as a matter of 

course whenever felony cases were to be brought.

¶17 Allowing judges to decide whether a grand jury is 

warranted, as Utah does, has its roots in nineteenth-century criticism 

of the grand jury system. By that time, preliminary hearings before 

magistrates—originally a means to gather evidence of guilt—had 

become what they are in Utah today: public, adversary proceedings 

that screen out unjustified prosecutions. In comparison with 

preliminary hearings, grand jury investigations came to be seen as 

“costly, slow, amateur, and prone to error,”5 not to mention secretive 

and unfair, given the defendant’s lack of representation at the 

proceedings.

¶18 Beginning in the 1850s, this criticism led a number of 

states to allow prosecution by information in all criminal cases, 

thereby removing the grand jury from its traditional role of 

protecting citizens from unjust prosecution. 1 SARAH SUN BEALE ET 

AL., GRAND JURY LAW AND PRACTICE 2D § 1:5, at 22–23 (rev. 2014). 

None of them abolished the grand jury entirely, however. Id. at 22. 

Instead, they kept the grand jury as an inquisitorial body whose 

most prominent purpose was the investigation of public corruption. 

Id. at 25–26.

¶19 California considered this investigative role so important 

that it required a grand jury to be summoned “at least once a year in 

each county.” CAL. CONST. art. I, § 8 (1879) (current version at CAL.

CONST. art. I, § 23). But not all reformers were comfortable with 

grand juries’ investigative powers; some decried the institution as a 

modern Star Chamber whose secret proceedings routinely violated 

the civil liberties of the people they investigated. RICHARD D.

YOUNGER, THE PEOPLE’S PANEL: THE GRAND JURY IN THE UNITED 

STATES, 1634–1941, at 66, 68 (1963). Such criticism led other states—

including prominently Michigan, Washington, and Wisconsin—to 

4 For example, county sheriffs presided over courts and 

conducted trials in cases of minor crime, id. at 40; but they were also 

tax collectors and jailors, id. at 18–19.

5 Id. at 708. But see Roger A. Fairfax, Jr., Grand Jury Innovation: 

Toward a Functional Makeover of the Ancient Bulwark of Liberty, 19 WM.

& MARY BILL RTS. J. 339, 341–45 (2010) (disputing these arguments 

against grand juries).

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pass laws under which “only a judge could initiate a grand jury 

investigation.”6

¶20 Utah joined this latter group when its constitution took 

effect in 1896. Using language borrowed from “Michigan, Wisconsin, 

Washington, Colorado and California,”7 the new Utah Constitution 

allowed all offenses to be prosecuted either “by information after 

examination and commitment by a magistrate” or “by indictment, 

with or without such examination and commitment.” UTAH CONST.

art. I, § 13 (1896). And on the issue of when grand juries should be 

called, Utah followed Michigan and Washington, not California: 

“[N]o grand jury shall be drawn or summoned unless in the opinion 

of the judge of the district, public interest demands it.” Id.

¶21 This constitutional provision was amended in 1948 to 

allow the legislature to regulate “[t]he formation of the grand jury.” 

UTAH CONST. art. I, § 13; see also 1947 Utah Laws 483, 483–84

(proposing the amendment). But the legislature, while repeatedly 

amending Utah’s grand jury laws, has never strayed from the notion 

that judges should decide whether a grand jury is necessary, as 

reflected in the following history:

1. Until 1967, the legislature kept the original constitutional 

scheme: a single district judge could summon a grand jury if 

he determined it was in the public interest. UTAH CODE § 77-

18-1 (1953).

2. From 1967 to 1980, the judges of each district were required to 

sit en banc at least once every other year to hear citizens’ 

requests for grand juries. They were to summon a grand jury 

if they found “reasonable cause” to believe that “law 

enforcement ha[d] failed” or that calling a grand jury was “in 

the interest of justice.” Id. § 77-18-1.1 (1978).

3. From 1980 to 1990, biennial hearings were still required, but 

district courts were no longer required to sit for the hearings 

6 1 BEALE ET AL., supra ¶ 18, § 1:5, at 22 (referring to Michigan); see 

also WASH. CONST art. I § 26 (“No grand jury shall be drawn or 

summoned in any county, except the superior judge thereof shall so 

order.”); YOUNGER, supra ¶ 19, at 150 (“[After grand jury reform], the 

grand jury was to appear in Wisconsin only when one had been 

specially summoned by a judge.”).

7 1 OFFICIAL REPORT OF THE PROCEEDINGS AND DEBATES OF THE 

CONVENTION ASSEMBLED AT SALT LAKE CITY ON THE FOURTH DAY OF 

MARCH, 1895, TO ADOPT A CONSTITUTION FOR THE STATE OF UTAH 313 

(1898) (statement of Mr. Wells).

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en banc. Id. § 77-10-1(1) (1982). The standard for calling a 

grand jury also changed, with the new statute stating only 

that the judges should summon a grand jury if there was 

“reasonable cause” to do so. Id.8

4. Finally, in 1990, the legislature established our present system, 

in which all authority to summon grand juries rests in a single 

statewide panel of five district judges. 1990 Utah Laws 1484. It 

also established, for the first time, procedures by which 

prosecutors could formally request a grand jury. Id. Whether 

prosecutors request a grand jury or not, however, a grand jury 

may be summoned only if the panel finds “good cause.” 

UTAH CODE § 77-10a-2(2)(a), (3).

¶22 Throughout these changes, the role of judges has remained 

constant. Under every version of Utah’s grand jury laws, from our 

constitution’s ratification to the present, judges have had the 

exclusive responsibility to determine whether a grand jury should be 

summoned. Further, the laws granting judges this responsibility 

have always given them great discretion in fulfilling it, using broad 

language like “public interest,”9 “the interest of justice,”10 or “good 

cause to believe a grand jury is necessary”11 to explain when a grand 

jury should be summoned.

¶23 Given this unbroken history of judges—and only judges—

exercising discretion to determine whether grand juries should be 

summoned, we readily conclude that the convening of a grand jury 

in Utah’s system is a judicial function.

2. Contemporary Practice

¶24 Although the foregoing history is sufficient to persuade us 

that the panel’s function is judicial, we also note briefly that the 

panel’s role in this case is consistent with the other roles that judges 

play in our criminal justice system: the panel operates as a check on 

prosecutorial power. Convening a grand jury does not merely 

substitute the jury for a preliminary hearing magistrate with no 

other consequences. Instead, it allows prosecutors to circumvent a 

number of protections that our law otherwise affords people 

suspected of crime.

8 Additionally, the 1980 statute allowed district courts to summon 

special-purpose grand juries on their own initiative. UTAH CODE

§ 77-10-1(2) (1982).

9 UTAH CONST. art. I, § 13 (1896).

10 UTAH CODE § 77-18-1.1 (1978).

11 Id. § 77-10a-2(2) (2015).

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¶25 A prosecutor who files a criminal information commences 

adversary litigation. The defendant then has a right to be informed 

of the charges and to be represented by counsel. See U.S. CONST.

amend. VI; Coleman v. Alabama, 399 U.S. 1, 9–10 (1970) (holding that 

preliminary hearings are a “critical stage” of the criminal process). 

The defendant must be allowed to present evidence in her defense, 

to challenge the admissibility of the prosecution’s evidence, and to 

cross-examine the prosecution’s witnesses. She also has a right to 

discovery, and the prosecution must give her all the exculpatory 

evidence in its possession even if she fails to request it. Strickler v. 

Greene, 527 U.S. 263, 280–81 (1999) (summarizing prosecutors’ 

disclosure duties).

¶26 By persuading the panel to summon a grand jury, a 

prosecutor postpones all of these obligations to defendants until 

after he obtains an indictment. He has no duty to inform his targets 

they are under investigation unless he calls them as witnesses. See

UTAH CODE § 77-10a-13(4)(b), (4)(c) (explaining the circumstances in 

which the prosecutor must inform witnesses they are under 

investigation). Even if he does call them as witnesses, their right to 

counsel is limited to a right to be advised by counsel while 

testifying.12 Defense counsel receive no opportunity to challenge the 

prosecutor’s evidence or to present their own case to the grand jury, 

and the prosecutor has no obligation to share evidence with the 

defense until after the grand jury returns an indictment, Id. § 77-10a13(4)(d).

¶27 Finally, and perhaps most importantly, when a prosecutor 

persuades the panel to summon a grand jury, the prosecutor gains 

the power to issue subpoenas in furtherance of the grand jury’s 

investigation. Id. § 77-10a-13(3)(a). He can issue such subpoenas on 

his own initiative, without prior approval from the grand jury, id., to 

compel the production of evidence for which he would otherwise 

need probable cause and a warrant.13 And his use of this subpoena 

power is not limited to the pursuit of an indictment against a 

particular defendant or even to the investigation of any particular 

12 Even the right to counsel’s advice while testifying is not 

guaranteed by the Federal Constitution, See United States v. Williams, 

504 U.S. 36, 49 (1992), but is granted by Utah statute, UTAH CODE

§ 77-10a-13(4)(a). 

13 This investigative use of the grand jury subpoena is common in 

the federal system. For a discussion of the practice, see Niki Kuckes, 

The Useful, Dangerous Fiction of Grand Jury Independence, 41 AM. CRIM.

L. REV. 1, 35–39 (2004).

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crime: once summoned, a grand jury “may inquire into and indict 

for any criminal activity occurring within the state.” Id. § 77-10a-3.

¶28 Thus, as is the case with search or arrest warrants, the 

convening of a grand jury grants powers to law enforcement that it 

would not otherwise have. And, as is also the case with warrants, 

our law requires judicial approval before a grand jury may be 

summoned. The inquiry required for such approval is, admittedly, 

quite different from the probable cause determination necessary for a 

warrant. But the purpose of the inquiry is the same: protecting 

Utahns’ civil liberties from unjustified intrusions.

¶29 We therefore conclude, for reasons both historical and 

practical, that determining whether a grand jury should be 

summoned is a judicial function. Our power to issue extraordinary 

writs therefore allows us to review the panel’s performance of that 

function.

II. THE PANEL DID NOT ABUSE ITS DISCRETION14

¶30 In some circumstances, relevant law does not lead a court 

to a single correct outcome and exclude all other possibilities. Rather, 

it presents the court with a set of options and trusts the court to 

determine which option is best suited to the facts at hand. A court 

making a decision under such conditions is said to have discretion.

¶31 To conclude that the panel abused its discretion, we would 

have to do more than decide that it failed to choose the best option. 

Instead, we would have to conclude either (1) that the panel’s 

decision was not actually among the options the law permitted 

under the circumstances, or (2) that the process by which the panel 

reached its decision was incorrect or inadequate. Examples falling in 

the latter category are decisions influenced by an incorrect 

understanding of relevant law,15 decisions that give weight to 

inappropriate considerations (or that fail to give adequate weight to 

14 The analysis in this section is deliberately abstract, and our

references to the hearing below are limited to the material contained 

in the parties’ briefs. We have of course reviewed the entire record, 

but the question of what the secrecy provisions of the statute actually 

cover has not been raised or briefed, and we therefore refrain from 

disclosing details of the panel’s reasoning contained in the record of 

the hearing below.

15 See State v. Barrett, 2005 UT 88, ¶¶ 15–17 & n.5, 127 P.3d 682.

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mandatory considerations),16 and “arbitrary” decisions “not based 

on fact, logic, and reason.”17

¶32 It is this second category of error that the state alleges took 

place below. Rather than arguing that the panel had no choice but to 

summon a grand jury, the state objects to three aspects of the panel’s 

reasoning. First, the state argues that the panel’s decision was 

motivated by an error of law—specifically, a misinterpretation of the 

statutory “good cause” standard that governs requests for a grand 

jury. Second, the state argues that the panel’s decision rested in part 

on legally inappropriate factors. And third, the state alleges that the 

panel acted out of impermissible “personal biases against grand 

juries.”

¶33 We address each of these arguments in turn.

A. The Panel Did Not Misinterpret the “Good Cause” Standard

¶34 The statute allowing the state to seek a grand jury reads as 

follows:

(3) When [a prosecutor] certifies in writing to the 

supervising judge that in his judgment a grand jury is 

necessary because of criminal activity in the state, the 

panel shall order a grand jury to be summoned if the 

panel finds good cause exists.

(4) In determining whether good cause exists under 

Subsection (3), the panel shall consider, among other 

factors, whether a grand jury is needed to help 

maintain public confidence in the impartiality of the 

criminal justice process.

UTAH CODE § 77-10a-2(3) to -2(4) (emphasis added).

¶35 According to the state, this statute’s “good cause” 

language establishes a deferential standard under which summoning 

grand juries is largely a matter of prosecutorial discretion. “Put 

simply,” the state argues, “the panel must determine if the District 

Attorney’s request is reasonable, and, if so, respect prosecutorial 

discretion in requesting the seating of a grand jury.” By scrutinizing 

the state’s request, the panel supposedly “step[ped] into the 

16 See Robert C. Post, The Management of Speech: Discretion and 

Rights, 1984 SUP. CT. REV. 169, 216 (citing cases in which the 

consideration of incorrect factors or improper weighting of correct 

factors was considered an abuse of discretion).

17 5 AM. JUR. 2D Appellate Review § 623 (2015).

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prosecutor’s role by determining that direct filing [was] a more 

suitable process.”18

¶36 We cannot agree. Under Utah law, as we explained above, 

the discretion to call a grand jury has always belonged to judges, not 

to prosecutors. Until 1990, no statute gave prosecutors the right even 

to request a grand jury, much less the right to have a grand jury 

summoned any time the prosecutor’s request was “reasonable.” And 

indeed it would be odd if the summoning of grand juries were a 

matter of prosecutorial discretion, since the chief effect of 

summoning a grand jury is to give the prosecutor a number of 

powers he would otherwise not possess.

¶37 The current version of the statute does not depart from our 

historical practice. The words “good cause,” by themselves, could be 

construed to suggest some level of deference to the prosecutor, but 

the rest of the statute makes clear that any such deference must be 

slight. To begin with, the prosecutor requesting a grand jury must 

certify not merely that a grand jury is desirable, or even that it is the 

best option available, but rather that “a grand jury is necessary.” Id.

§ 77-10a-2(3) (emphasis added). Similarly, the statute directs the 

panel to “consider . . . whether a grand jury is needed to help 

maintain public confidence in the impartiality of the criminal justice 

process.” Id. § 77-10a-2(4) (emphasis added).

¶38 This language of necessity, combined with the words 

“good cause,” suggests an inquiry not fundamentally different from 

the one the panel undertakes when a private citizen requests a grand 

jury—that is, the inquiry of whether there is “good cause to believe a 

18 To support its arguments about prosecutorial discretion, the 

state referred us to the legislative history of a 2010 amendment to the 

grand jury statute. This amendment slightly altered the language of 

section 77-10a-2(3) and added section 77-10a-2(4), which requires the 

panel to consider a grand jury’s potential effect on the public’s 

confidence in the judicial system. See 2010 Utah Laws 505.

We agree with the state that this legislative history supports the 

notion that there might sometimes be good cause when the public 

would perceive a prosecutor’s decisions to be politically motivated. 

But it does not support a conclusion that the “good cause” standard 

is as deferential as the state argues, and even if it did, it would be 

irrelevant. The “good cause” standard was not established by the 

2010 amendment to the grand jury statute, but by the act passed in 

1990 that allowed the prosecutor to request a grand jury. See 1990 

Utah Laws 1484. There is no reason to believe that legislators’ 

speeches in 2010 are a reliable guide to the intent of their 

predecessors twenty years earlier.

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grand jury is necessary.” Id. § 77-10a-2(2)(a); see also Dep’t of Revenue 

of Oregon v. ACF Indus., Inc., 510 U.S. 332, 342 (1994) (“[T]he normal 

rule of statutory construction [is] that identical words used in 

different parts of the same act are intended to have the same 

meaning.” (internal quotation marks omitted)). This does not mean, 

of course, that prosecutors are in the same position as private 

citizens who ask the panel to summon a grand jury. If a prosecutor 

can show good cause, the panel has no choice but to “order a grand 

jury to be summoned,” UTAH CODE § 77-10a-2(3), while a panel 

hearing a private citizen’s request may decline to summon a grand 

jury even if good cause exists, see id. § 77-10a-2(2). But in both cases, 

the panel must exercise its independent judgment and “find[] good 

cause” to believe a grand jury is needed. Id. § 77-10a-2(2)(a) 

(governing requests by private citizens); id. § 77-10a-2(3) (governing 

requests by prosecutors). If it does not, the statute does not permit it 

to summon a grand jury.

¶39 We therefore reject the state’s interpretation of the “good 

cause” standard, and, consequently, cannot disturb the panel’s 

decision on that basis.

B. The Panel Was Not Influenced by Inappropriate Factors

¶40 The state argues further that the panel’s decision was 

influenced by a number of factors that, it claims, are legally 

irrelevant to the finding of good cause. By invoking such “nonstatutory considerations,” the panel supposedly “ignored the 

statutory process” and rendered a decision based on “flawed 

methodology.”

¶41 We find this argument puzzling, given that the statute 

does not restrict the panel’s deliberation to any particular set of

factors. It does establish a single factor that the panel must 

consider—namely, “whether a grand jury is needed to help maintain 

public confidence in the impartiality of the criminal justice 

process”—but it explicitly states that this is merely one factor

“among other[s]” that the panel should consider. Id. § 77-10a-2(4). 

Which “other factors” should be considered is left to the panel’s 

discretion. Id.

¶42 We reject, for similar reasons, the state’s assertion that the 

panel’s judges may not “weigh their personal experiences” in 

reaching their decision. Because the statute does not establish any 

particular method by which the panel should evaluate a grand jury’s 

effect on public opinion, nothing prohibits them from drawing on 

any of their personal experiences that may be relevant—in 

particular, their personal experiences with grand juries and with the 

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STATE v. HON. CHRISTIANSEN

Opinion of the Court

state’s alternative means of prosecution, to which the requested 

grand jury must be compared in order to determine whether it is 

actually “needed.” Id. Indeed, given the panel’s secrecy, it is difficult 

to imagine a basis other than personal experience on which the panel 

could make this determination.

¶43 All this does not mean, of course, that the panel has 

unlimited freedom to choose the factors it will consider, or the 

means by which it will assess a grand jury’s potential effect on public 

opinion. Obviously the panel’s judges may not refuse to summon a 

grand jury merely because they personally dislike the prosecutor 

who has made the request, and they may not predict a grand jury’s 

effect on public opinion by consulting tarot cards or astrology tables.

But so long as the panel considers the single factor it is required to 

consider, and so long as its choice of additional factors appears 

reasonably calculated to serve the purposes of the grand jury statute 

and the interests of justice, we must defer to its judgment.

¶44 Applying this deferential standard to the panel’s decision, 

we conclude that the state has not met its burden: all the factors on 

which the panel relied were appropriate, and the way it weighed 

those factors does not appear to have been irrational, arbitrary, or 

demonstrably inconsistent with governing law.

C. The Panel’s Decision Shows No Signs of Bias

¶45 Finally, we reject the state’s allegation that the panel’s 

decision was motivated by inappropriate “personal biases against 

grand juries.” If, with this language, the state intended to allege 

actual bias—that is, an inability to consider the state’s arguments 

fairly and render an impartial decision—then this allegation is 

absolutely without basis.

¶46 But if the state alleges merely that the panel approached 

the state’s request with an open-minded skepticism—with an 

appreciation for the dangers of grand juries, and a preference for 

direct prosecution in the vast majority of cases—then it alleges no 

more than that the panel agrees with the law of Utah and with our 

constitution’s framers, who themselves distrusted grand juries and 

allowed them to be appointed only in unusual circumstances.

¶47 In short, we see no bias that would allow us to disturb the 

panel’s decision.

CONCLUSION

¶48 The respondents in this case perform a function that 

judges have performed throughout the history of our state: 

determining whether there is a good reason to summon a grand jury. 

The reason this role belongs to judges, rather than to the executive, is 

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Cite as: 2015 UT 74

Opinion of the Court

that summoning a grand jury gives the prosecution potentially 

dangerous powers that it would not otherwise possess. The 

prosecution should not be able to grant itself these powers at will, so 

our law requires judges to act as a check on the executive’s desire to 

summon grand juries.

¶49 Because the respondents’ function is judicial, they must 

perform it with the obedience to law and careful reasoning we 

expect of judges entrusted with discretionary decisions. If they fail to 

do so, this court has authority under its extraordinary writ 

jurisdiction to correct their error.

¶50 But here we see no error to correct. The errors the state has 

alleged did not occur: the panel did not misinterpret the “good 

cause” standard, its decision was not influenced by factors it lacked 

authority to consider, and it showed no signs of inappropriate bias. 

Instead, the panel acted exactly as the statute directs it to act, 

employing its discretion with the care and impartiality we expect 

judges to employ. Under such circumstances, the rules governing 

our extraordinary writ jurisdiction do not allow us to substitute our 

judgment for that of the panel, or to assess for ourselves whether the 

state has established good cause. The legislature gave that power to 

the panel, not to us, and we will not arrogate it to ourselves.

¶51 The state’s petition for extraordinary relief is therefore 

denied.

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