                 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, 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
information—that is, by a prosecutor filing charges directly in
                    STATE v. HON. CHRISTIANSEN
                       Opinion of the Court
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.
                          BACKGROUND 1
    ¶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
argument to address various confidentiality issues, we asked the


   1  By law, the panel’s hearings are secret. UTAH CODE § 77-10a-
2(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.
                                    2
                         Cite as: 2015 UT 74
                         Opinion of the Court

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


                                   3
                     STATE v. HON. CHRISTIANSEN
                        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 § 77-10a-
2(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
                                   4
                         Cite as: 2015 UT 74
                         Opinion of the Court

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.
                                 5
                    STATE v. HON. CHRISTIANSEN
                       Opinion of the Court
    ¶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).
                                  6
                         Cite as: 2015 UT 74
                         Opinion of the Court

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).
                                 7
                        STATE v. HON. CHRISTIANSEN
                           Opinion of the Court
         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).
                                     8
                         Cite as: 2015 UT 74
                         Opinion of the Court

    ¶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. § 77-10a-
13(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).
                                    9
                       STATE v. HON. CHRISTIANSEN
                          Opinion of the Court
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 DISCRETION 14
    ¶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.
                                      10
                           Cite as: 2015 UT 74
                           Opinion of the Court

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).
                                     11
                     STATE v. HON. CHRISTIANSEN
                        Opinion of the Court
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.
                                    12
                         Cite as: 2015 UT 74
                         Opinion of the Court

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 “non-
statutory 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

                                   13
                     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
                                  14
                         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.




                                  15
