                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


           ANTHONY JAMES MERRICK, III, Plaintiff/Appellant,

                                         v.

                PAUL PENZONE, et al., Defendants/Appellees.

                              No. 1 CA-CV 16-0505
                                FILED 5-23-2017


            Appeal from the Superior Court in Maricopa County
                           No. CV 2014-000478
                The Honorable Roger E. Brodman, Judge

    AFFIRMED IN PART; VACATED AND REMANDED IN PART


                                    COUNSEL

Anthony James Merrick, III, San Luis
Plaintiff/Appellant In Propria Persona

Maricopa County Attorney’s Office, Phoenix
By J. Randall Jue
Counsel for Defendants/Appellees



                        MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Donn Kessler joined.
                      MERRICK v. PENZONE et al.
                         Decision of the Court

D O W N I E, Judge:

¶1            Anthony James Merrick, III appeals from the denial of his
motion for summary judgment and from the grant of Defendants’ cross-
motion for summary judgment. We affirm the denial of Merrick’s motion
for summary judgment. Although we agree with aspects of the superior
court’s ruling regarding Defendants’ cross-motion for summary judgment,
the record is inadequate to conclude that, as a matter of law, Defendants
employed the least restrictive means of furthering their compelling
governmental interest in jail security. We therefore vacate the grant of
summary judgment to Defendants and remand for further appropriate
proceedings.

                FACTS AND PROCEDURAL HISTORY

¶2            Merrick alleges that, as a member of the Fundamental
American Christian Temple, he must participate in confession and seek
spiritual advice and guidance only from church elders or other members.
While incarcerated at a jail facility operated by the Maricopa County
Sheriff’s Office (“MCSO”), Merrick requested unmonitored, unrecorded
telephone calls with his brother in Oklahoma, whom he asserted was a
church elder.      Jail officials responded that Merrick could have
unmonitored personal visits from clergy, write to members of his church,
or participate in confession with jail clergy of other denominations.
Merrick rejected these options, stating, “[t]here is no faith group in
Arizona at this time that is the same faith as mine.”

¶3             Merrick filed a “Complaint for Violation of Religious
Freedom” against the sheriff and other MCSO-related defendants
(collectively, “Defendants”), alleging violations of his rights under
Arizona’s Free Exercise of Religion Act. The parties filed cross-motions
for summary judgment. The superior court denied Merrick’s motion and
granted Defendants’. Merrick’s timely appeal followed. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1) and -2101(A)(1).

                             DISCUSSION

   I.        Summary Judgment

¶4           We review both the grant of summary judgment and
questions of statutory interpretation de novo. Ariz. Health Care Cost
Containment Sys. v. Bentley, 187 Ariz. 229, 231 (App. 1996). We view the
evidence and all reasonable inferences therefrom in the light most


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                       MERRICK v. PENZONE et al.
                          Decision of the Court

favorable to the non-moving party. Hill-Shafer P’ship v. Chilson Family Tr.,
165 Ariz. 469, 472 (1990). Our task is to determine “whether a genuine
issue of material fact for trial exists, and, if not, whether the trial court
correctly applied the substantive law.” CSA 13-101 Loop, LLC v. Loop 101,
LLC, 233 Ariz. 355, 359, ¶ 12 (App. 2013).

¶5            Arizona’s Free Exercise of Religion Act (“FERA”) — A.R.S.
§ 41-1493.01 — was enacted in 1999 “to protect Arizona citizens’ right to
exercise their religious beliefs free from undue governmental
interference.” State v. Hardesty, 222 Ariz. 363, 365, ¶ 8 (2009). The statute
provides, in pertinent part:

        A. Free exercise of religion is a fundamental right that
           applies in this state even if laws, rules or other
           government actions are facially neutral.

        B. Except as provided in subsection C, government shall
           not substantially burden a person’s exercise of religion
           even if the burden results from a rule of general
           applicability.

        C. Government may substantially burden a person’s
           exercise of religion only if it demonstrates that
           application of the burden to the person is both:

                        1. In furtherance of         a    compelling
                           governmental interest.

                        2. The least restrictive means of furthering
                           that compelling governmental interest.

A.R.S. § 41-1493.01(A)–(C).

¶6            Claimants alleging a FERA violation must establish: “(1) that
an action or refusal to act is motivated by a religious belief, (2) that the
religious belief is sincerely held, and (3) that the governmental action
substantially burdens the exercise of religious beliefs.” Hardesty, 222 Ariz.
at 366, ¶ 10. “Once the claimant establishes a religious belief that is
sincerely held and substantially burdened, the burden shifts to the state to
demonstrate that its action furthers a ‘compelling governmental interest’
and is ‘the least restrictive means of furthering that compelling
governmental interest.’”       Id. (citation omitted).       “[W]hether the
government has a compelling interest that is served by the least restrictive
means is a question of law for the court to decide.” Id. at 366–67, ¶ 12.


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                       MERRICK v. PENZONE et al.
                          Decision of the Court

¶7            The superior court found triable issues of fact as to whether
Merrick’s religious beliefs are “sincerely held” and whether his actions
were “motivated by a religious belief.” The record supports this
determination, and these factual issues required the court to deny
Merrick’s motion for summary judgment.

¶8           In granting Defendants’ cross-motion for summary
judgment, the court concluded that, as a matter of law, Defendants had
demonstrated “a compelling governmental interest that is the least
restrictive means of furthering that compelling interest.”1 The record
supports the determination that Defendants established a compelling
governmental interest in recording or monitoring inmate calls. But for the
reasons discussed infra, the record was insufficient to establish that, as a
matter of law, MCSO’s policy is the least restrictive means of furthering
that compelling governmental interest.

       A.     Compelling Governmental Interest

¶9             A penal institution’s security is a compelling state interest.
See Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (“[P]rison security is a
compelling state interest.”); Taylor v Sterrett, 532 F.2d 462, 472 n.14 (5th
Cir. 1976) (“Jail security alone is unquestionably a substantial or
compelling governmental interest.”). An inmate’s “right to telephone
access is ‘subject to rational limitations in the face of legitimate security
interests of the penal institution.’” Washington v. Reno, 35 F.3d 1093, 1100
(6th Cir. 1994) (quoting Strandberg v. City of Helena, 791 F.2d 744, 747 (9th
Cir. 1986)).



1         To the extent Defendants suggest that, as a matter of law, their
denial of the relief Merrick sought did not substantially burden his
exercise of religion, we disagree. As noted supra, ¶ 7, the superior court
found disputed issues of fact as to the sincerity of Merrick’s religious
beliefs and whether his requests were motivated by his religious beliefs. If
such factual questions are resolved in Merrick’s favor, then, at the very
least, there are questions of fact about whether Defendants substantially
burdened his exercise of religion. The relevant inquiry under FERA is
whether the government substantially burdened the exercise of religion,
not whether Merrick remained free to engage in alternative religious
activities. The record includes tenets of Merrick’s asserted faith, including
the belief that “communications between members are sacred and meant
to be private between them. Communications must not be revealed to
non-members, unless consented to by the members involved.”


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                       MERRICK v. PENZONE et al.
                          Decision of the Court

¶10          MCSO has adopted a written policy that requires recording
or monitoring of all personal/non-legal inmate telephone calls. An
affidavit submitted by MCSO’s Inmate Telephone System Administrator
states:

      The monitoring of all personal/non-legal telephone calls
      serves a legitimate penological interest.        This interest
      includes monitoring for the purpose of gathering
      information about criminal activities inside the jail, security
      of the jail, and criminal activities directed at people in the
      community.

¶11            In the face of Defendants’ evidence that recording non-legal
calls furthers a compelling governmental interest in jail security, Merrick
presented no contrary evidence. See GM Dev. Corp. v. Cmty. Am. Mort.
Corp., 165 Ariz. 1, 5 (App. 1990) (if party opposing summary judgment
fails to present, either by affidavit or other competent evidence, facts that
controvert moving party’s affidavits, the facts alleged by the moving party
may be considered true). Based on the record before it, the superior court
did not err by concluding that Defendants demonstrated the requisite
compelling governmental interest.

      B.     Least Restrictive Means

¶12           We next examine Merrick’s contention that less restrictive
means exist for protecting the governmental interest in jail security.
Under the federal Religious Freedom Restoration Act (“RFRA”), 42 U.S.C.
§§ 2000bb to 2000bb-4, “[t]he least-restrictive-means standard is
exceptionally demanding.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.
2751, 2780 (2014). Because FERA “is substantially identical to” RFRA,
Hardesty, 222 Ariz. at 367 n.7, ¶ 13, the United States Supreme Court’s
interpretations of RFRA offer “persuasive authority.” Id.

¶13           To establish that monitoring or recording telephonic
religious counseling and confession sessions is the least restrictive means
of achieving the government’s compelling interest in jail security,
Defendants must demonstrate that “proposed alternatives for achieving
the State’s compelling interest are ineffective or impractical.” Hardesty,
222 Ariz. at 368, ¶ 21. Merrick’s position in the superior court and on
appeal has consistently been that Defendants can employ less-restrictive
measures that do not infringe on his religious rights by adopting the same
policy for inmates’ religious calls that they apply to legal calls.




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                       MERRICK v. PENZONE et al.
                          Decision of the Court

¶14           In briefing the cross-motions for summary judgment,
Defendants said little about the least restrictive means prong, asserting
only that “the record shows that recording and monitoring of
personal/non-legal phone calls is the least restrictive means of furthering
the compelling interest of prison security.” Defendants did not address
Merrick’s facially-colorable assertion that they could “satisfy any security
concerns by having inmates follow the policies in place for calling
attorneys or ‘legal calls,’” beyond stating that such a policy is not
“plausible.”

¶15             Treating inmates’ religious telephone calls in the same
manner as legal calls may not be a plausible alternative.2 The problem is
that nothing in the record establishes this. See Phx. Baptist Hosp. & Med.
Ctr., Inc., v. Aiken, 179 Ariz. 289, 292 (App. 1994) (in considering grant of
summary judgment, court considers only evidence before the superior
court when it ruled). Unlike the affidavit addressing MCSO’s penological
interest in monitoring inmate calls, Defendants did not explain why they
cannot apply the same policy to religious calls as they apply to legal calls.
Based on additional motion practice and/or evidence on remand,
Defendants may be able to satisfy the “exceptionally demanding” least-
restrictive-means standard. But they have not yet done so. We therefore
vacate the grant of summary judgment to Defendants.3

    II.      Motion to Compel

¶16          Finally, Merrick challenges the denial of his motion to
compel discovery. Trial courts have broad discretion in resolving
discovery disputes. Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511,
¶ 11 (App. 2009). We review the denial of a motion to compel for an
abuse of discretion. See Braillard v. Maricopa Cty., 224 Ariz. 481, 497, ¶ 52
(App. 2010). “[A] court abuses its discretion when it commits an error of



2       The question before us is not whether Merrick personally poses a
security risk. We note, however, that MCSO’s policies would appear to
permit Defendants to restrict or withhold religious activities through an
“override report” if an inmate or religious representative adversely affects
“jail order or security.”
3       The record does not support Merrick’s characterization of his
complaint as setting forth causes of action in addition to violation of his
religious freedom.




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                       MERRICK v. PENZONE et al.
                          Decision of the Court

law in reaching its decision or the record fails to provide ‘substantial
support’ for the decision.” Grant, 222 Ariz. at 511, ¶ 11 (citation omitted).

¶17           The superior court examined each discovery request Merrick
discussed in his motion to compel. It concluded that the unanswered
requests for production were either irrelevant or “overly broad and
burdensome” and that unanswered interrogatories were either vague or
argumentative. We discern no abuse of discretion in making these highly
fact-intensive determinations.

                              CONCLUSION

¶18           For the foregoing reasons, we affirm the denial of Merrick’s
motion for summary judgment. We vacate the entry of summary
judgment in favor of Defendants and remand for further proceedings
consistent with this decision.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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