Rodriguez-Ramirez v. State

                                  IN THE
               ARIZONA COURT OF APPEALS
                               DIVISION ONE


               MARIO RODRIGUEZ-RAMIREZ, Petitioner,

                                      v.

                           STATE OF ARIZONA,
                               Respondent. 1

                           No. 1 CA-SA 23-0182
                             FILED 04-29-2025


 Petition for Special Action from the Superior Court in Maricopa County
                          No. CR2021-101028-001
                 The Honorable Kristin Culbertson, Judge

   JURISDICTION ACCEPTED; RELIEF GRANTED; REMANDED


                                 COUNSEL

Ballecer & Segal, LLP, Phoenix
By Natalee Segal, Nicholas Bustamante
Counsel for Defendant

Blackwell Law Office, PLLC, Phoenix
By Jocquese Blackwell
Co-Counsel for Defendant




1 The court amended the caption to reflect the naming conventions now

reflected in Rule 5(b), Arizona Rules of Procedure for Special Actions (2025).
All future filings shall reflect this change.
Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Real Party in Interest

Coppersmith Brockelman PLC, Phoenix
By Austin C. Yost and Andrew T. Fox
Counsel for Amicus Curiae AZ Attorneys

First Liberty Institute, Plano Texas
By Andrew W. Gould
Counsel for Amicus Curiae First Liberty

Arizona Attorney General’s Office, Phoenix
By Ashley Torkelson Levine
Counsel for Amicus Curiae, Arizona Attorney General

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld and Kristen Reller
Counsel for Amicus Curiae, Maricopa County Public Defender



                                 OPINION

Chief Judge David B. Gass delivered the opinion of the court, in which
Presiding Judge Michael J. Brown and Judge Andrew M. Jacobs joined.


G A S S, Chief Judge:

¶1           Petitioner Mario Rodriguez-Ramirez, a pastor, challenges the
superior court’s order denying his motion to suppress evidence of his
statements to a co-pastor. The superior court ruled the surreptitiously
recorded conversation between Rodriguez-Ramirez, a pastor, and a
co-pastor at the same church, was admissible after finding the
clergy-penitent privilege under A.R.S. § 13-4062.3 did not apply.

¶2           We accept special action jurisdiction and grant relief. On de
novo review, we conclude the clergy-penitent privilege applies to
Rodriguez-Ramirez’s confession. In doing so, we focus our analysis on
whether allegedly privileged clergy-penitent communications are
privileged and thus inadmissible at trial. We remand for further
proceedings consistent with this opinion.


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                   SPECIAL ACTION JURISDICTION

¶3              When the superior court overrules a privilege objection, the
party asserting the privilege has no equally plain, speedy, or adequate
remedy by appeal. See Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz.
130, 135 ¶ 11 (App. 2003). Rodriguez-Ramirez’s special action also raises
issues of first impression of statewide importance, for which special action
review is appropriate. Id. We thus exercise our discretion and accept special
action jurisdiction. See Ariz. R.P. Spec. Act. 8(a) (2024); see also Ariz. R.P.
Spec. Act. 12(a)–(b)(2), (4) (2025).

               FACTUAL AND PROCEDURAL HISTORY

¶4            Rodriguez-Ramirez was a pastor at a Phoenix church. A
co-pastor helped Rodriguez-Ramirez lead the church. The 2 had known
each other since they were young and were friends for more than 30 years.
And the co-pastor was married to Rodriguez-Ramirez’s sister.

¶5            At some point, Rodriguez-Ramirez was accused of engaging
in sexual activity with the alleged victim, the co-pastor’s niece, who was a
minor at the time. The alleged victim was unrelated by blood to Rodriguez
-Ramirez. In late 2021, the State indicted Rodriguez-Ramirez for sexual
offenses against the alleged victim.

¶6            In May 2020, after the accusations surfaced but before the
indictment, Rodriguez-Ramirez and the co-pastor agreed to meet to discuss
the accusations. Because of COVID-19 protocols in place then, they met at
a park. The co-pastor recorded the conversation without Rodriguez
-Ramirez’s knowledge or consent. Later, the co-pastor distributed the
recording to families in Rodriguez-Ramirez’s church and to a pastor from
another church of the same denomination. The record does not reveal when
or how police obtained the recording.

¶7             Defense counsel raised the issue, and the superior court
ordered briefing. Rodriguez-Ramirez asked the superior court to suppress
the recording and transcript, arguing it was privileged and he never waived
the privilege. The State argued the conversation was not privileged, but the
State did not assert a waiver.

¶8            Defense counsel did not limit his briefing on the suppression
motion to the circumstances of the alleged confession. Rather, he referred
to some of the conversation’s content to support the motion. The State’s
briefing focused on the circumstances of the conversation and the familial
and personal relationship between Rodriguez-Ramirez and the co-pastor.


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The State’s discussion of the substance of the conversation was limited to 2
concluding lines: “At no point does [Rodriguez-]Ramirez say he
understands this will be a secret or confidential conversation. There is
discussion of [Rodriguez-]Ramirez leaving the church broadly.”

¶9           During a 2-day suppression hearing, the superior court heard
testimony from the co-pastor and Rodriguez-Ramirez. Without objection,
the State also provided the court a transcript and audio copy of the
recording. During questioning, both sides used the content of the
conversation to support their positions. Even so, defense counsel made it
clear evidence of the communications between his client and the co-pastor
was pertinent only for purposes of the evidentiary hearing, and his client
was not waiving the privilege. Both the State and the superior court agreed
Rodriguez-Ramirez could testify without waiving the privilege.

¶10           The superior court concluded the co-pastor was a member of
the clergy under A.R.S. § 13-4062.3. The superior court then focused on
whether Rodriguez-Ramirez made the confession when the co-pastor was
acting in a “professional character” and concluded the co-pastor was not.
The superior court explained, “The most credible and compelling evidence
is the transcript of the . . . conversation,” also making 6 other specific
findings about the topics Rodriguez-Ramirez and the co-pastor discussed,
including some of Rodriguez-Ramirez’s statements. The superior court did
not resolve whether the confession was made “in the course of discipline
enjoined by the church.” Id. Ultimately, the superior court concluded,
“Given the totality of the circumstances, [Rodriquez-Ramirez]’s claimed
belief that he thought the admissions made to [the co-pastor] were
confidential and for the purpose of spiritual guidance is not reasonable.”

                                 ANALYSIS

¶11           Whether a privilege exists is a question of law and is subject
to de novo review. State ex rel. Adel v. Adleman, 252 Ariz. 356, 360 ¶ 10 (2022)
(addressing attorney-client privilege); see also State v. Archibeque, 223 Ariz.
231, 234 ¶ 5 (App. 2009) (addressing clergy-penitent privilege). But the
court applies an abuse of discretion standard when reviewing “any
necessary fact finding conducted by the trial court in order to resolve these
issues.” Archibeque, 223 Ariz. at 234 ¶ 5.

¶12            Arizona’s legislature established the statutory clergy-penitent
privilege applicable to criminal matters. A.R.S. § 13-4062.3. “A clergyman
or priest [shall not be examined as a witness], without consent of the person
making the confession, as to any confession made to the clergyman or priest



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in his professional character in the course of discipline enjoined by the
church to which the clergyman or priest belongs.” Id. The legislature used
identical language to establish the clergy-penitent privilege applicable to
civil matters. See A.R.S. § 12-2233.

¶13            “A privilege in the law of evidence is a right which a person
has in a given instance to prevent the revelation of otherwise material and
relevant evidence.” Church of Jesus Christ of Latter-Day Saints v. Superior Ct.,
159 Ariz. 24, 28 (App. 1988) (citation omitted). “As we have recognized, the
[clergy-penitent] privilege is a legislative response to the urgent need of
people to confide in, without fear of reprisal, those entrusted with the
pressing task of offering spiritual guidance so that harmony with one’s self
and others can be realized.” Waters v. O’Connor, 209 Ariz. 380, 384 ¶ 17
(App. 2004) (quotations omitted). The clergy-penitent privilege protects the
“human need to disclose to a spiritual counselor, in total and absolute
confidence, what are believed to be flawed acts or thoughts and to receive
priestly consolation and guidance in return.” Id. (quoting Trammel v. United
States, 445 U.S. 40, 51 (1980)).

I.     In limited circumstances, a court may consider the content of
       allegedly clergy-penitent privileged communications to determine
       whether the privilege applies.

¶14           The superior court never expressly addressed whether it
found it was necessary and appropriate to review the recording and, if so,
for what purpose. See McGlothlin v. Astrowsky, 255 Ariz. 449, 457 ¶ 21 (App.
2023). But the superior court was not required to make that finding here
because, as the privilege holder, Rodriguez-Ramirez expressly gave the
court permission to review the recording’s contents.

¶15           The Arizona Supreme Court has said, “the court may not
invade the privilege to determine its existence, even in camera using a
special master.” Clements v. Bernini, 249 Ariz. 434, 438 ¶ 1 (2020) (emphasis
added). Instead, a court generally should resolve privilege disputes by
examining the circumstances—not the content—of the allegedly privileged
communications. Cf. Adleman, 252 Ariz. at 362–63 ¶¶ 20–22 (holding the
parties and the court prematurely used and considered the
communication’s content in addressing privilege and remanding to
relitigate the privilege issue “based on the circumstances of the
communications rather than [their content]”).

¶16          Even so, the superior court may consider the content under
limited circumstances. McGlothlin, 255 Ariz. at 457–58 ¶¶ 21–24. After the



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Arizona Supreme Court’s rulings in Clements and Adleman, this court issued
McGlothlin and recognized a 3-step burden-shifting framework to
determine if the superior court should examine the contents of privileged
information. Id. McGlothin held the superior court may review content if:
(1) the privilege holder makes a prima facie showing the privilege applies,
(2) the party contesting the privilege makes a “factual showing to support
a reasonable, good faith belief that the document is not privileged,” and (3)
a review is necessary to resolve the dispute. Id.

¶17           But the McGlothlin framework does not apply when the
privilege holder expressly agrees to the superior court’s review of the
allegedly privileged materials’ contents. For example, in Clements, the
superior court appointed a special master to conduct an in camera review
of the contents of jail calls at the State’s request and over objections by
Clements, the privilege holder. 249 Ariz. at 439 ¶¶ 4–6. The Arizona
Supreme Court explained the superior court may not conduct an in camera
review of potentially privileged jail calls received by the State until the
superior court determines whether such review is necessary. Id. at 441 ¶ 16.
Similarly, in McGlothlin, this court ruled the superior court erred when it
conducted an in camera review even though no party requested or objected
to the review. 255 Ariz. at 455 ¶ 8, 456 ¶ 16.

¶18           True, the superior court here never expressly considered
McGlothlin’s elements before considering the content. But Rodriguez
-Ramirez and the State jointly submitted the contents of the allegedly
privileged recording for the superior court to review. The policies limiting
in camera review, which are designed to protect privilege, bear little
application when the privilege holder asks for the in camera review. See
Clements, 249 Ariz. at 438 ¶ 1 (“[T]he court may not invade the privilege to
determine its existence, even in camera . . . .”) (emphasis added). There is
no such invasion when the privilege holder voluntarily submits the
information it claims is privileged to the superior court, asking the superior
court to conduct an in camera review.

¶19           Also key to the analysis is which party seeks the in camera
review. The privilege holder is the master of the privilege and can waive
the privilege for a limited purpose to protect the privilege. See Burch &
Cracchiolo, P.A. v. Meyers, 237 Ariz. 369, 376–77 ¶¶ 25–26 (App. 2015)
(recognizing a privilege holder can waive privilege for limited purpose of
allowing in camera review when necessary to assert privilege). Because
Rodriguez-Ramirez sought the in camera review here, the 3-step McGlothlin
analysis did not apply. Accordingly, the superior court did not have to



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engage in that analysis before considering the content of the
communication to determine whether the clergy-penitent privilege applied.

¶20           The limitation on considering the communication’s content
applies even though the privilege issue here is admissibility, not
discoverability. See A.R.S. § 13-4062.3. In both situations, paragraph 3
prohibits testimony about clergy-penitent privileged communications
“without consent of the person making the confession.” Id. The court’s
analysis thus does not change just because the co-pastor made and
distributed the recording to every family in the church and to another
pastor without Rodriguez-Ramirez’s knowledge or consent.

¶21           In summary, no matter how a court properly receives an
allegedly privileged communication, the court considering the
communication must limit its use. McGlothlin, 255 Ariz. at 457 ¶ 21 (“[E]ven
when appropriate, [in camera review] should be limited.”). Archibeque
identified the generally applicable 3-step analysis to determine if the
privilege applies based on the facts of that case: “(1) Is the person who
received the confession a ‘clergyman or priest’?; (2) Was the confession
made while the clergyman or priest was acting in his professional capacity?;
and (3) Was the confession made in the course of discipline enjoined by the
church to which the clergyman or priest belongs?” 223 Ariz. at 234 ¶ 7
(paraphrasing A.R.S. § 13-4062.3). In articulating that 3-step process,
Archibeque did not consider the communication’s content. Id. We next
articulate the appropriate process for determining if the privilege applies
under the Archibeque analysis when the court is considering the content.

II.    The clergy-penitent privilege applied to Rodriguez-Ramirez’s
       confession.

¶22            The parties agree the communication here satisfies the first
Archibeque element but dispute the second and third element. See id.
Rodriguez-Ramirez argues the content of the communication shows it
satisfies those elements.

¶23           The privilege belongs to the penitent. Church of Jesus Christ of
Latter-Day Saints, 159 Ariz. at 28–29. “The party asserting a privilege has the
burden of proving each of its elements.” Fann v. Kemp, 253 Ariz. 537, 541 ¶ 8
(2022). Rodriguez-Ramirez thus bears that burden. See id.

¶24          To that point, an amicus argues the State bears the burden of
proving the privilege does not apply once Rodriguez-Ramirez asserted it.
We disagree. The amicus cites State v. Bogan, 183 Ariz. 506, 508 (App. 1995).
That case involved the anti-marital fact privilege, see A.R.S. § 13-4062.1,


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specifically whether the defendant’s marriage to the testifying spouse was
void because his prior marriage had not been legally dissolved. Id. That
privilege is distinct because the law presumes the first marriage was legally
dissolved. See Wilson v. Wilson, 1 Ariz. App. 77, 80–81 (1965). The party
alleging the later marriage was invalid thus bears the burden of showing
the invalidity of the later marriage. See id.; see also Cross v. Cross, 94 Ariz. 28,
31 (1963). Bogan thus does not stand for the broad proposition that the party
opposing the privilege bears the burden of proving it does not apply.

       A.      Step 1: The co-pastor is a member of the “clergy.”

¶25             Under Archibeque, the first question is, “Is the person who
received the confession a ‘clergyman or priest’?” 223 Ariz. at 234 ¶ 7. The
State, in its response to defense counsel’s petition, does not dispute step 1
was met: the co-pastor is “clergy” under the privilege statute. The co-pastor
identified himself as a co-pastor and had held the position for 10 years. He
graduated from a seminary with a certificate. He preached to the
congregation when Rodriguez-Ramirez could not. He believed he could
have taken charge of the church for 1 or 2 years if Rodriguez-Ramirez was
absent. And he and Rodriguez-Ramirez acted as a “team” in the leadership
of their church.

¶26           The co-pastor thus is a clergyman of a religious organization
by the “organization’s ecclesiastical rules, customs and laws.” Waters, 209
Ariz. at 381 ¶ 2, 384 ¶ 18.

       B.      Step 2: The communication was a “confession” received in
               the co-pastor’s professional character as clergy.

¶27           Archibeque’s second question is, “Was the confession made
while the clergyman or priest was acting in his professional capacity?” 223
Ariz. at 234 ¶ 7. The unusual circumstances presented here requires us to
expand upon Archibeque’s second question when a court consider the
content of the communication to determine whether it was a “confession”
made while the co-pastor was acting in his professional character. Supra
¶¶ 15–19.

               1.     The communication was a “confession.”

¶28            Arizona courts have not directly articulated the meaning or
scope of a “confession” under the statute when a court examines the
communication itself. See, e.g., Church of Jesus Christ of Latter-Day Saints, 159
Ariz. at 28 (declining to decide “validity of the [superior] court’s distinction
between confessional communications and interviews” when privilege was


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waived); Archibeque, 223 Ariz. at 234–35 ¶¶ 6–14 (holding privilege applied
to “alleged confession” of a meeting with clergy when scope of
“confession” was not before the court).

¶29            Other jurisdictions have interpreted “confession” in similar
privilege statutes. See, e.g., Scott v. Hammock, 870 P.2d 947, 951 (Utah 1994).
But see id. at 952 (citing contrary authorities). The Utah Supreme Court
chose not to limit “confession” to “penitential communications” but
construed it “in light of the particular doctrine or discipline of the church
to which the [recipient of the confession] belongs.” Id. at 950, 954. The
Montana Supreme Court recognized “differing judicial perceptions” of
various denominations might result in problematic application and thus
adopted Utah’s approach “in order to least interfere with the federal and
[state] constitutional protections of religious freedom.” State v. MacKinnon,
957 P.2d 23, 28 ¶ 24 (Mont. 1998); see also State v. Glenn, 62 P.3d 921, 925
(Wash. Ct. App. 2003). Because Arizona’s statute aligns with these
authorities, their reasoning is persuasive. Compare A.R.S. § 13-4062.3, with
Scott, 870 P.2d at 950, and MacKinnon, 957 P.2d at 27 ¶ 20.

¶30           Under this standard, Rodriguez-Ramirez’s conversation with
the co-pastor constitutes a “confession.” See Scott, 870 P.2d at 953.
Rodriguez-Ramirez spoke with his co-pastor about his earlier actions, said
he was struggling with unwanted urges, and acknowledged concern about
what he did. He also expressed concern about the harm to the church, the
congregation, the alleged victim, and the alleged victim’s family. The
co-pastor acknowledged those actions, discussed the harm it caused the
alleged victim, and spoke about the spiritual ramifications for Rodriguez
-Ramirez.

¶31           During the discussion, Rodriguez-Ramirez sought the
co-pastor’s help to minimize harm to the congregation. The communication
also addressed matters of church management. They talked about whether
it would be better for him to just leave without telling the congregation the
truth. Alternatively, they considered whether it would be better to face the
congregation. It reflected a concern for the congregation. For Rodriguez
-Ramirez, a clergy member, church management concerns reflect how he
could reach harmony with himself and the other members of his church.
See Waters, 209 Ariz. at 384 ¶ 17. The conversation thus was a “confession”
under A.R.S. § 13-4062.3.




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              2.      Rodriguez-Ramirez held a reasonable subjective
                      belief the co-pastor received the confession in his
                      professional character.

¶32            The superior court concluded Rodriguez-Ramirez did not
reasonably believe his conversation with the co-pastor was “confidential
and for the purpose of spiritual guidance.” Rodriguez-Ramirez argues the
superior court should not have considered the reasonableness of his belief
the co-pastor engaged in the allegedly privileged conversation in the
co-pastor’s professional character. Relying on Waters, Rodriguez-Ramirez
argues the superior court may “only . . . assess the reasonableness of a
penitent’s belief . . . [when] there is a dispute” as to the clergy status of the
receiver of a confession or “a denomination’s rules, customs and laws . . . .”
209 Ariz. at 385 ¶ 25. But this proposed interpretation of Waters is too
narrow.

¶33           In Waters, this court said a person’s status as clergy under the
privilege statute “should be determined by [the alleged clergy member’s]
organization’s ecclesiastical rules, customs and laws.” 209 Ariz. at 385 ¶ 21.
In dictum, Waters also said a dispute about those rules, customs, and laws
“might” require the superior court to assess the reasonableness of a
communicant’s belief of the alleged clergy member’s status as clergy. Id.
¶ 25 (emphasis added). That dictum does not forbid the superior court from
assessing the reasonableness of the claimant’s belief in any of the elements
triggering the statutory privilege. Indeed, Waters said as much. See id.

¶34           Waters justified, in part, not engaging in its own examination
of the claimant’s belief when it said, “[O]n the record presented, the
[superior] court found [claimant’s] belief unreasonable.” Id. at 386. Such a
finding of unreasonableness tracks the “subjective” test to determine
whether an attorney-client relationship exists in the attorney-client
privilege context. See Clements, 249 Ariz. at 440 ¶ 9. “The inquiry should
examine a client’s perception of the relationship and intent to secure legal
advice.” Id.

¶35            The examination, however, does not end with the
privilege-claimant’s asserted belief. The superior court “must decide
whether the party consulting the attorney believes that he or she is
approaching the attorney in a professional character and with the intent of
securing legal advice.” Id. (emphasis added) (quoting State v. Fodor, 179
Ariz. 442, 448 (App. 1994)). The court must examine “the nature of the work
performed and . . . the circumstances under which the confidences were
divulged” to decide whether the claimant really did perceive the privileged


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relationship he claims. Id. (quoting Alexander v. Superior Ct., 141 Ariz. 157,
162 (1984)).

¶36             When engaging in this subjective test of attorney-client
relationships, Arizona courts and courts in other jurisdictions have noted
the “reasonableness” of the putative client’s belief in the relationship as a
factor in their decisions. See, e.g., Alexander, 141 Ariz. at 162 (“The record
shows it would have been reasonable for [putative clients] to believe
[putative attorney] was their attorney . . . .”); Westinghouse Elec. Corp. v.
Kerr-McGee Corp., 580 F.2d 1311, 1321 (7th Cir. 1978) (ruling putative clients
“entertained a reasonable belief” they had communicated with a law firm
within a privileged relationship). Mere use of the term “reasonable” does
not transmute a subjective test into an objective one when, as in the cited
cases, it reflects the court’s evaluation of the circumstances of the allegedly
privileged communication and its effect on a unique claimant.

¶37           In short, Waters suggested 2 situations when examination of
the reasonableness of a claimant’s subjective belief about the recipient of a
confession being clergy may be relevant: (1) when the court faces “a
legitimate dispute regarding a denomination’s rules, customs and laws” as
to clergy membership or (2) when the recipient of the confession was a
clergy imposter. 209 Ariz. at 385–86 ¶ 25 and n.9. But Waters did not
prohibit courts from examining the claimant’s subjective belief as to any
element establishing a clergy-penitent communication as privileged.

¶38           The superior court thus did not abuse its discretion when it
considered evidence of the reasonableness of Rodriguez-Ramirez’s belief
the co-pastor received the confession in his professional clerical character.

              3.     Rodriguez-Ramirez held a reasonable subjective
                     belief in the confidentiality of his confession.

¶39           The issue then is whether the superior court erred when it
concluded Rodriguez-Ramirez did not reasonably believe the conversation
was confidential and for spiritual guidance. Rodriguez-Ramirez argues he
reasonably believed his statements to the co-pastor were privileged. The
State argues that belief was unreasonable because Rodriguez-Ramirez and
the co-pastor discussed how to talk about the allegations against
Rodriguez-Ramirez with other people.

¶40           The superior court found Rodriguez-Ramirez’s subjective
belief about the privileged nature of the conversation with the co-pastor
was unreasonable. The superior court relied on 2 key points: (1) the
co-pastor discussed the allegations with the alleged victim’s parents before


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the confession and (2) Rodriguez-Ramirez was aware the co-pastor would
discuss the allegations with the alleged victim’s parents after the
confession.

¶41           Rodriguez-Ramirez argues the superior court erred when it
used those findings as a partial basis for concluding his “claimed belief” in
the confidentiality of his confession and its purpose of spiritual guidance
was unreasonable. He also challenges the superior court’s reliance on those
findings to support, in part, its determination the co-pastor did not receive
the confession in his character as clergy. Rodriguez-Ramirez is correct.

¶42           The superior court could not draw an inference about
whether the clergy-penitent privilege applies based on whether
Rodriguez-Ramirez or the co-pastor treated the facts of the abuse
allegations against Rodriguez-Ramirez as non-confidential.

¶43            The co-pastor offered Rodriguez-Ramirez spiritual advice
and counsel. The co-pastor could provide that advice and counsel only in
his character as co-pastor “so that harmony with [Rodriguez-Ramirez’s] self
and [the congregation could] be realized.” See Waters, 209 Ariz. at 384 ¶ 17.

¶44          And the co-pastor only directed Rodriguez-Ramirez to speak
with another pastor for a limited purpose. The co-pastor ultimately
suggested Rodriguez-Ramirez speak to another pastor who also assisted at
the church and who might provide more guidance about the best
approach. At no point did the co-pastor decline to provide any guidance.
He simply suggested other resources. And the co-pastor concluded the
conversation by offering a prayer specific to Rodriguez-Ramirez.

¶45            That evidence establishes the co-pastor received
Rodriguez-Ramirez’s confession in his professional character as clergy.
Even though the co-pastor testified he spoke with Rodriguez-Ramirez as a
friend, he responded to Rodriguez-Ramirez’s statements at least in part
with clerical guidance and counsel.

¶46           Even so, the State argues the co-pastor is a longtime friend
with Rodriguez-Ramirez and the co-pastor thought he was meeting with
Rodriguez-Ramirez as a longtime friend, not a co-pastor. But the co-pastor’s
view of the conversation does not control whether the conversation is
privileged. Rather, the issue is whether Rodriguez-Ramirez reasonably
believed the conversation was privileged. See Fodor, 179 Ariz. at 448 (“The
test for determining whether a communication is protected by the
attorney-client privilege is a subjective one; it focuses primarily on the state
of mind of the client.”). Moreover, even if the co-pastor’s belief were


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relevant, the co-pastor acknowledged on cross-examination he was
“providing both [] friendship and spiritual guidance” to Rodriguez
-Ramirez.

¶47           Based on the above, the co-pastor received Rodriguez
- Ramirez’s confession in the co-pastor’s professional character.

              4.     The co-pastor was acting within his professional
                     character.

¶48            During the suppression hearing, the superior court also
focused on whether the co-pastor acted in his professional character. To be
in a clergy’s professional character, “the communication [must] be directed
to a clergyman in his or her capacity as a spiritual leader within his or her
religious denomination.” Waters, 209 Ariz. at 385 ¶ 22.

¶49           Other courts have construed “professional character” to mean
the confessor intentionally sought out the clergy to provide spiritual
counsel or advice. See People v. Peterson, 47 N.E.3d 1005, 1053 ¶ 198 (Ill. App.
Ct. 2015) (communicating with clergy is privileged only if “made for the
purpose of receiving spiritual counsel or consolation”); Ex parte Zoghby, 958
So. 2d 314, 322–23 (Ala. 2006).

¶50             But Arizona courts have never limited the professional
character element to a clergy offering spiritual guidance for individual
confessor’s salvation. It is broader. Indeed, Waters explained the privilege
“is a legislative response to the urgent need of people to confide in, without
fear of reprisal, those entrusted with the pressing task of offering spiritual
guidance so that harmony with one’s self and others can be realized.” 209
Ariz. at 384 ¶ 17 (quotation omitted).

¶51           As above, the co-pastor responded to Rodriguez-Ramirez’s
statements by offering him spiritual guidance. Supra ¶¶ 43–45. Thus, the
co-pastor received Rodriguez-Ramirez’s confession in his professional
character as clergy.

       C.     Step 3: The co-pastor received the confessions “in the course
              of discipline enjoined by the church” to which he belonged.

¶52          “The ‘in the course of discipline enjoined by the church’
requirement refers to the duties and obligations of the clergyman and the
rules and customs of the cleric’s faith.” Waters, 209 Ariz. at 297 ¶ 23. The
clergy member must be “enjoined by the practices or rules of the clergy
member’s religion to receive the confidential communication and to


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                    RODRIGUEZ-RAMIREZ v. STATE
                         Opinion of the Court

provide spiritual counsel.” Id. (quoting State v. Martin, 959 P.2d 152, 157
(Wash. Ct. App. 1998)).

¶53           Rodriguez-Ramirez testified the discipline process of his and
the co-pastor’s church involved a face-to-face conversation with a pastor
that may, “if the person doesn’t understand,” progress to a conversation
with a witness present. The co-pastor also testified for wrongdoing within
the church: “we” would first speak face-to-face with the person. Then, “if
the person wasn’t willing to listen,” another person—preferably another
“leader” in the church or someone “firm in [its] teachings”—would join the
conversation. Finally, the co-pastor testified, the issue might be brought
before a representative body of the church or even the whole church itself
for a decision on how to handle the problem. He testified the process
typically would terminate at the first or second step, involving 1 witness at
most. Rodriguez-Ramirez agreed with the co-pastor’s testimony about this
process.

¶54           Rodriguez-Ramirez and the co-pastor testified consistently
about their church’s disciplinary process, and their conversation at the park
conformed to that process. Rodriguez-Ramirez met alone with the
co-pastor. They met at a park, but as the superior court noted, they met at
the height of the pandemic restrictions. Rodriguez-Ramirez made
statements about the allegations against him, and the co-pastor dispensed
priestly advice and counsel.

¶55           Because Rodriguez-Ramirez made his confessions to the
co-pastor in a confessional conversation in conformity with their testimony
about the church’s rules and customs, the co-pastor received them “in the
course of discipline enjoined by the church” to which he belonged.

III.   The clergy-penitent privilege applies to the recording and the
       transcript of the recording as well as the co-pastor’s testimony
       about the confession.

¶56          Section 13-4062 introduces all statutory privileges in Title 13’s
criminal code. It reads, “A person shall not be examined as a witness in the
following cases . . . .” Though the statute refers to being “examined as a
witness,” Rodriguez-Ramirez argues the clergy-penitent privilege also
precludes the admission of the recording and transcript. We address this
issue because it likely will arise on remand. See State v. Abdi, 226 Ariz. 361,
366 ¶ 18 (App. 2011).

¶57           Despite the statutory language appearing to limit the
privilege to “being examined as a witness,” Arizona courts consistently


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                           Opinion of the Court

apply the language more broadly. For example, this same language applies
to Arizona’s statutory attorney-client privilege, and the courts have applied
that privilege beyond attorney testimony, applying it to text messages,
documents in a file, and recordings of phone calls. See, e.g., Adleman, 252
Ariz. at 363 ¶ 22 (considering whether privilege applied to text messages);
Clements, 249 Ariz. at 441 ¶ 18 (addressing recordings of phone calls); Lund
v. Myers, 232 Ariz. 310, 310 ¶ 4, 311–12 ¶ 13 (2013) (addressing documents
from attorney’s client file).

¶58            True, courts more narrowly construe the clergy-penitent and
physician-patient privileges because they lack the common-law tradition of
the attorney-client privilege. See Waters, 209 Ariz. at 384 ¶ 16 (noting the
narrow construction for the clergy-penitent privilege); State v. Wilson, 200
Ariz. 390, 393 ¶ 5 (App. 2001) (noting the narrow construction for the
physician-patient privilege). Even so, Arizona applies the physician-patient
privilege to protect medical records beyond physician testimony. See State
v. Zeitner, 244 Ariz. 217, 221 ¶ 16 (App. 2018). In an earlier case, the court
explained it does so to avoid “render[ing] the statutory privilege
meaningless or of no effect.” Tucson Med. Ctr. Inc. v. Rowles, 21 Ariz. App.
424, 427 (1974). And it would be strange, indeed, if the courts were to apply
precisely the same statutory language addressing privileges differently
based on which privilege was at issue. See Qasimyar v. Maricopa Cnty., 250
Ariz. 580, 587 ¶ 19 (App. 2021) (citing Trisha A. v. Dep’t of Child Safety, 247
Ariz. 84, 88 ¶ 17 (2019) and Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 172–73 (2012)). As the court in Qasimyar said,
“a word or phrase used in related statutes should be construed to bear the
same meaning throughout.” 250 Ariz. at 587 ¶ 19. That approach tracks
sound paradigms of statutory construction. “Any word or phrase that
comes before a court for interpretation is . . . part of an entire corpus juris. . . .
Hence laws dealing with the same subject . . . should if possible be
interpreted harmoniously.” Scalia & Garner, supra, at 252. We agree. “The
presumption of consistent usage applies also when different sections of an
act or code are at issue. . . . [T]he more the connection the cited statute has
with the statute under consideration, the more plausible the argument
becomes.” Id. at 172–73.

¶59            Applying that same reasoning to the clergy-penitent
privilege, the clergy-penitent privilege extends to the recording and the
transcript. See Rowles, 21 Ariz. App. at 427.




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                    RODRIGUEZ-RAMIREZ v. STATE
                         Opinion of the Court

                               CONCLUSION

¶60           We accept jurisdiction and grant relief. We vacate the superior
court’s denial of Rodriguez-Ramirez’s suppression motion and remand for
proceedings consistent with this opinion.




                         MATTHEW J. MARTIN • Clerk of the Court
                          FILED:          JR




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