State of Arizona Ex Rel R Romley v. Hon Ballinger

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ex rel. ) Arizona Supreme Court
RICHARD M. ROMLEY, Maricopa ) No. CV-03-0376-PR
County Attorney, )
) Court of Appeals
Petitioner, ) Division One
) No. 1 CA-SA 03-0212
v. )
) Maricopa County Superior
THE HONORABLE EDDWARD J. ) Court Administrative Order
BALLINGER, JUDGE OF THE SUPERIOR ) No. 2003-079
COURT OF THE STATE OF ARIZONA, )
in and for the County of )
Maricopa, )
) O P I N I O N
Respondent Judge. )
)
__________________________________)
Special Action from the
Superior Court of Maricopa County
Administrative Order No. 2003-079
The Honorable Eddward J. Ballinger, Judge
ORDER VACATED
_________________________________________________________________
Richard M. Romley, Maricopa County Attorney Phoenix
By Gerald R. Grant, Deputy County Attorney
Attorneys for Petitioner
Terry Goddard, Attorney General Phoenix
By Charles A. Grube, Assistant Attorney General
Attorneys for Respondent Judge
_________________________________________________________________
J O N E S, Chief Justice
¶1 This case presents the question whether Maricopa County
Superior Court Administrative Order (“AO”) No. 2003-079
(including its amended version) constitutes a local rule of
court. The AO in question, applicable in all criminal cases,
establishes a procedure by which every criminal defendant may
seek expedited review of a motion to modify pretrial release
conditions. We conclude the AO creates a rule of court. That
being the case, Rule 36 of the Arizona Rules of Criminal
Procedure requires pre-approval of this court. Because it was
not pre-approved, we vacate the AO. We have jurisdiction
pursuant to Article VI, Section 5(3) of the Arizona Constitution,
Arizona Revised Statutes § 12-120.24 (2003), and Rule 23, Arizona
Rules of Civil Appellate Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Rule 7.4(a) of the Arizona Rules of Criminal Procedure
requires that conditions of pretrial release be determined at the
initial appearance. Rule 7.4(b) allows any defendant in custody
to “move for reexamination of the conditions of release whenever
the person’s case is transferred to a different court or the
motion alleges the existence of material facts not previously
presented to the court.”
¶3 On August 27, 2003, Superior Court Judge Eddward J.
Ballinger, who presides over the criminal department at Maricopa
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County, issued AO No. 2003-079, which prescribes specific
procedures to be followed by parties filing motions under Rule
7.4(b) to modify pretrial release conditions. The order sets
forth the following requirements for requesting modifications to
the conditions:
1. The moving party must provide a copy of any
motion to the appropriate Commissioner.
2. The motion must state whether there is a
victim in the case.
3. The motion must be accompanied by a form of
order on which the court may schedule a hearing date.
4. The moving party must obtain the order setting
a hearing date signed by the Commissioner.
5. The moving party must hand-deliver a copy of
the motion and the order to the opposing party within 24
hours of the issuance of the order.
6. A hearing on the motion must be held within
four judicial days of receipt of the motion in non-
victim cases and within seven judicial days in victim
cases.
7. If the moving party fails to file a
certificate of service establishing compliance with the
order’s service terms, the hearing must be continued at
the opposing party’s request.
¶4 On September 12, 2003, the Maricopa County Attorney,
representing the State, filed a petition for special action in the
court of appeals, challenging the AO as an unapproved and thus
invalid local rule of court. On September 26, 2003, Judge
Ballinger issued an amended version, adding a provision expressly
restricting the AO to parties seeking expedited review and adding
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a procedure by which the opposing party can obtain a continuance
by demonstrating (1) that the moving party has failed to make
proper service of the motion, (2) that going forward with a
hearing would deprive any party of a substantial legal right, or
(3) that other good cause exists to delay the hearing.
Notwithstanding the amended version, the State continues to
maintain that the AO constitutes a local rule of court not
approved by this court and thus is invalid under Rule 36.
¶5 The court of appeals declined to accept jurisdiction of
the special action October 8, 2003. The State timely filed a
petition for review, which we granted.
DISCUSSION
¶6 This court is vested with exclusive constitutional
authority to enact rules that govern procedural matters in all
Arizona courts. Ariz. Const. art. 6, § 5(5). The power “may not
be supplemented, annulled or superseded by an inferior court such
as the Superior Court.” Anderson v. Pickrell, 115 Ariz. 589, 590,
566 P.2d 1335, 1336 (1977). However, a court “may make and amend
rules governing its practice not inconsistent with [the Arizona
Rules of Criminal Procedure].” Ariz. R. Crim. P. 36. Such “local
rules” are not effective “until approved in writing by the Supreme
Court.” Id.¶7 The traditional test for whether something is a local
rule is set forth in Hare v. Superior Court, 133 Ariz. 540, 542,
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652 P.2d 1387, 1389 (1982): “A rule of court prescribes a
procedural course of conduct that litigants are required to
follow, the failure to comply with which may deprive the parties
of substantial rights.” A rule thus applies uniformly to all
litigants and their attorneys to govern practice in pending cases.
See Hedlund v. Sheldon, 173 Ariz. 143, 146, 840 P.2d 1008, 1011
(1992). By contrast, an “administrative” measure generally
embodies an internal statement of policy not directly applicable
to litigants or their counsel, but adopted to provide more
efficient management and disposition of cases.
¶8 A separate element of the Hare definition appears to
require that in order for a procedure to be a “rule,” it must
potentially deprive the parties of “substantial rights” if the
procedure is not followed. We believe this language is
unnecessarily restrictive. Although a particular procedure may
not directly affect substantial rights, if the procedure affects
the manner in which litigants assert or defend claims, including
the assertion of procedural claims, it is more accurately
characterized as a rule of court.
¶9 Accordingly, we hold that a procedural requirement is a
“rule” of court if it prescribes a course of conduct uniformly
applicable to parties and their attorneys to govern the manner in
which claims or demands are made or defenses asserted. Within
this framework, we turn to the AO in question.
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¶10 As noted, the AO sets forth seven requirements. Of the
seven, only the sixth is administrative, merely setting guidelines
that the court will follow in scheduling hearings under the rule.
The remaining six delineate actual procedures required of
defendants seeking expedited modification of pretrial release
conditions. To comply, the defendant, as moving party, must
provide a copy of the motion to the court, obtain an order setting
a hearing date within a prescribed time, and hand-deliver a copy
of the motion and order to the opposing party within 24 hours of
the issuance of the order. Further, each defendant must state in
the motion whether the alleged crime involved a victim. Such
requirements are not mere matters of court administration but are
matters that immediately affect the manner in which criminal
defendants may move for expedited review under Rule 7.4 and how
the State shall respond to those claims.
¶11 The respondent’s argument that the AO is not a local
rule is based entirely on the assertion that the AO is not
inconsistent with the Rules of Criminal Procedure. Inconsistency,
however, is not the litmus test for determining whether something
is a rule or an administrative determination. See Espinoza v.
Martin, 182 Ariz. 145, 148, 894 P.2d 688, 691 (1995) (“Even if the
. . . policy were consistent with the rules of procedure, the
policy constituted a local rule that was invalid because [the
lower court] adopted it without first obtaining the approval of
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this court.”); see also State v. City Court, 150 Ariz. 99, 101-03,
722 P.2d 367, 369-71 (1986) (invalidating as an unauthorized local
rule a court order not found to be inconsistent with the Rules of
Criminal Procedure).
CONCLUSION
¶12 We do not, in today’s opinion, evaluate the merits of
the AO in question. Nevertheless, we hold that AO No. 2003-079
(including its amended version) constitutes an unauthorized local
rule because it prescribes a procedural course of conduct required
of all criminal defendants seeking expedited review to modify
pretrial release conditions. Merely placing the “administrative”
label on a measure that functions as a rule of court will not
preserve it. Accordingly, the AO in the instant case violates the
requirement of Rule 36 that a local rule be approved in writing by
this court. We therefore vacate AO No. 2003-079.
___________________________________
Charles E. Jones
Chief Justice
CONCURRING:
_______________________________ ______________________________
Ruth V. McGregor, Rebecca White Berch, Justice
Vice Chief Justice
_______________________________ ______________________________
Michael D. Ryan, Justice Andrew D. Hurwitz, Justice
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