State v. Montes

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0017-PR
Appellee, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-CR 08-0148
CESAR MONTES, )
) Pima County
Appellant. ) Superior Court
) No. CR20054089
)
)
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Howard L. Fell, Judge Pro Tem

REVERSED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals Division Two
223 Ariz. 337, 223 P.3d 681 (App. 2009)

VACATED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Amy M. Thorson, Assistant Attorney General Tucson
Attorneys for State of Arizona

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER Tucson
By David J. Euchner
Attorneys for Cesar Montes
________________________________________________________________

P E L A N D E R, Justice

¶1 We here address whether the Legislature violated the

separation of powers doctrine in 2009 by enacting Senate Bill
(“SB”) 1449, which made retroactive SB 1145, a 2006 law

concerning the defense of justification in criminal cases. We

hold that SB 1449 was a valid exercise of legislative authority.

I.

¶2 In 2006, the Legislature enacted SB 1145, 2006 Ariz.

Sess. Laws, ch. 199 (2d Reg. Sess.). This law amended Arizona’s

self-defense statute, Arizona Revised Statutes (“A.R.S.”)

section 13-205(A) (2003), to require the state to “prove beyond

a reasonable doubt that the defendant did not act with

justification” if the defendant presents some evidence of

justification. In Garcia v. Browning, we held that SB 1145 did

not apply to criminal offenses occurring before its effective

date of April 24, 2006, because the Legislature had not

expressly declared that the law would operate retroactively.

214 Ariz. 250, 254 ¶ 20, 151 P.3d 533, 537 (2007); see A.R.S.

§ 1-244 (2003) (providing that no law is “retroactive unless

expressly declared therein”).

¶3 In 2008, Cesar Montes was tried on multiple charges,

including first-degree murder, stemming from offenses committed

in 2005. Montes claimed he had killed one victim in self

defense. Based on Garcia and former § 13-205(A) (as it read

before the SB 1145 amendment), the jury was instructed that

Montes had to prove by a preponderance of the evidence that he

had acted in self defense. The jury rejected that claim and
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found Montes guilty of second-degree murder and two counts of

aggravated assault. The court of appeals affirmed Montes’

convictions and sentences in a memorandum decision.

¶4 Shortly thereafter, effective September 30, 2009, the

Legislature enacted SB 1449, providing that its 2006 amendment

in SB 1145 applied retroactively. 2009 Ariz. Sess. Laws, ch.

190, §§ 1-2 (1st Reg. Sess.). Senate Bill 1449 states as

follows:

Section 1. Applicability
Laws 2006, chapter 199 applies retroactively to all
cases in which the defendant did not plead guilty or
no contest and that, as of April 24, 2006, had not
been submitted to the fact finder to render a verdict.

Section 2. Purpose
The purpose of this act is to clarify that the
legislature intended to make Laws 2006, chapter 199
retroactively applicable to all cases in which the
defendant did not plead guilty or no contest and that
were pending at the time the bill was signed into law
by the governor on April 24, 2006, regardless of when
the conduct underlying the charges occurred.

¶5 Citing SB 1449, Montes moved for reconsideration in

the court of appeals, arguing that SB 1145 applied to him

because his case was still pending trial on April 24, 2006. The

court denied Montes’ motion, finding SB 1449 an unconstitutional

attempt “to overrule retroactively a supreme court decision.”

State v. Montes, 223 Ariz. 337, 340 ¶ 15, 223 P.3d 681, 684

(App. 2009). The court of appeals reasoned that, after we held

in Garcia that the statutory changes effected in SB 1145 applied

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only prospectively, the Legislature could not retrospectively

“chang[e] the statute as interpreted” by this Court. Id. at

¶ 13.

¶6 Disagreeing with Montes, another panel of the court of

appeals reached a contrary conclusion in State v. Rios, holding

that “the operative portion of [SB 1449] does not violate the

separation of powers clause,” but rather constitutes “a valid

exercise of the Legislature’s power to retroactively grant new

rights to criminal defendants.” 225 Ariz. 292, ___ ¶ 1, 306

¶ 51, 237 P.3d 1052, 1054, 1066 (App. 2010).

¶7 We granted Montes’ petition for review to consider an

issue of statewide importance and one on which panels of the

court of appeals have issued conflicting opinions. We have

jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24 (2003).

II.

¶8 The legislative, executive, and judicial branches of

Arizona government are “separate and distinct, and no one of

such departments shall exercise the powers properly belonging to

either of the others.” Ariz. Const. art. 3. This separation of

powers, however, is not absolute, but rather provides necessary

flexibility to government and permits some overlap among

branches. State ex rel. Woods v. Block, 189 Ariz. 269, 276, 942

P.2d 428, 435 (1997); State v. Prentiss, 163 Ariz. 81, 84-85,
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786 P.2d 932, 935-36 (1989). Article 3 prevents one branch of

government from encroaching upon or usurping the functions

properly belonging to another branch. See Block, 189 Ariz. at

276, 942 P.2d at 435; Prentiss, 163 Ariz. at 85, 786 P.2d at

436.

¶9 In this case we consider whether, by enacting SB 1449,

the Legislature intruded on powers properly belonging to the

judiciary. Both Montes and the State correctly acknowledge that

the Legislature could have made SB 1145 retroactive when it was

enacted in 2006. See Garcia, 214 Ariz. at 254 ¶ 19, 151 P.3d at

537. The point of contention here is whether the Legislature

could constitutionally do so after our decision in Garcia. The

State asserts that SB 1449 is an unconstitutional attempt to

overrule Garcia, and that separation of powers forecloses the

Legislature from making SB 1145 retroactive in the wake of that

opinion. Montes argues that SB 1449 is constitutional because

Garcia “left open the possibility” that the Legislature could

make the provisions of SB 1145 retroactive “if it so desired.”

We agree with Montes.

¶10 The question in Garcia was “not whether the

legislature could have made [SB] 1145 retroactive, but rather

whether it did so.” 214 Ariz. at 254 ¶ 19, 151 P.3d at 537. We

expressly recognized that nothing prohibited the Legislature

from making SB 1145 retroactive. Id. Our holding that SB 1145
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did not apply retroactively rested solely on A.R.S. § 1-244 and

the Legislature’s failure to expressly declare in SB 1145 that

it applied to offenses committed before its effective date.

Garcia, 214 Ariz. at 252-53 ¶¶ 7-11, 151 P.3d at 535-36.

¶11 Nor did Garcia suggest that “at no time in the future

could the Legislature make [SB 1145] retroactive.” Rios, 225

Ariz. at ___ ¶ 25, 237 P.3d at 1059-60. Thus, the Legislature’s

later enactment of SB 1449 did not “overrule” Garcia. Although

SB 1449 was enacted in response to Garcia, every legislative

enactment retroactively changing a court’s pronouncement on a

statute is not a per se separation of powers violation. See,

e.g., Hale v. Wellpinit Sch. Dist. No. 49, 198 P.3d 1021,

1027-28 (Wash. 2009) (holding legislature’s retroactive

amendment of statutory definition, which rejected court

interpretation, did not violate separation of powers). Rather,

the Legislature does not violate separation of powers when it

acts to make a law retroactive without disturbing vested rights,

overruling a court decision, or precluding judicial decision-

making. See Rios, 225 Ariz. at ___ ¶ 17, 237 P.3d at 1057.1

1
  In support of its holding that SB 1449 “did not usurp or
encroach upon judicial functions by making the new burden of
proof [on self defense] retroactive,” the court in Rios applied
the four-factor test we adopted in Block, 189 Ariz. at 276-78,
942 P.2d at 435-37. See Rios, 225 Ariz. at ___ ¶¶ 20-24, 237
P.3d at 1058-59. We agree with the result in Rios. But having
rejected the State’s contention that SB 1449 overruled Garcia,
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 III.

¶12 In finding SB 1449 unconstitutional, the Montes court

relied primarily on State v. Murray, 194 Ariz. 373, 982 P.2d

1287 (1999), and State v. Fell, 209 Ariz. 77, 97 P.3d 902 (App.

2004), aff’d on other grounds, 210 Ariz. 554, 115 P.3d 594

(2005). See Montes, 223 Ariz. at 339-40 ¶¶ 9-11, 223 P.3d at

683-84. We agree with the court in Rios, however, that those

cases are not controlling here. See Rios, 225 Ariz. at ___ ¶ 26

& nn.6-7, ___ ¶ 36, 237 P.3d at 1060 & nn.6-7, 1062 (discussing

Murray and Fell).

¶13 In Murray, we struck down a statute retroactively

restricting a defendant’s vested right to parole eligibility.

194 Ariz. at 374-75 ¶ 6, 982 P.2d at 1288-89. In that case, the

Legislature had enacted a measure retroactively requiring flat-

time sentences, responding to our holding in State v. Tarango,

185 Ariz. 208, 212, 914 P.2d 1300, 1304 (1996), that certain

prisoners could not be given such sentences. Murray, 194 Ariz.

at 374-75 ¶¶ 4, 6, 982 P.2d at 1288-89. In holding that the

statute violated separation of powers, we noted that parole

eligibility on sentencing is a “substantive right” and the

Legislature “‘may not disturb vested substantive rights by

retroactively changing the law that applies to completed

the sole premise for the alleged separation of powers violation,
we find no need to employ Block’s four-part test.
7
events.’” Id. at 375 ¶ 6, 982 P.2d at 1289 (quoting San Carlos

Apache Tribe v. Superior Court, 193 Ariz. 195, 205 ¶ 15, 972

P.2d 179, 189 (1999)).2

¶14 Senate Bill 1449’s operative provision, in contrast,

does not disturb vested rights. The State does not argue, nor

does the law suggest, that the government has a vested right to

a conviction, at least when, as here, a case is pending trial or

on direct appeal. Cf. State v. Morris, 378 N.E.2d 708, 715

(Ohio 1978) (holding that statute that retroactively reduced

penalties for drug offenses did not violate separation of

powers).

¶15 The court of appeals in Fell held that a legislative

attempt to “retroactively nullify” this Court’s interpretation

of a sentencing statute violated separation of powers. 209

Ariz. at 82 ¶ 17, 97 P.3d at 907. But as Rios noted, “[t]he

issue in Fell was whether the Legislature could retroactively

amend sentencing statutes to permit a court to apply more

2
  San Carlos invalidated
various statutory provisions on
separation of powers grounds as a legislative attempt to
prescribe rules of decision in pending cases. 193 Ariz. at 210
¶ 33, 972 P.2d at 194 (citing United States v. Klein, 80 U.S.
128, 146-47 (1871)). The rule of decision doctrine is not
implicated here, however, because SB 1449 does not involve the
Legislature “adjudicat[ing] pending cases by defining existing
law and applying it to fact.” Id. at ¶ 34. Senate Bill 1449
does not limit any court’s ability to weigh evidence, nor does
it mandate a specific factual finding based on particular
evidence. See Rios, 225 Ariz. at ___ ¶ 51, 237 P.3d at 1066.

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aggravating facts in a case which arose before the amendment and

to overrule” our decision in State v. Viramontes, 204 Ariz. 360,

64 P.3d 188 (2003), which “limit[ed] the aggravators [that]

could be applied under the law in effect at the time of the

crime.” Rios, 225 Ariz. at ___ n.7, 237 P.3d at 1060 n.7.

Thus, the statute at issue in Fell not only overruled this

Court’s prior opinion, to the detriment of defendants, but also

had ex post facto implications. Fell, 209 Ariz. at 80-81

¶¶ 10-12, 97 P.3d at 905-06. No such concerns exist here.

¶16 We also reject the State’s argument, raised for the

first time in its supplemental brief, that SB 1449

unconstitutionally disturbs victims’ rights “in the finality of

a defendant’s conviction.” The Arizona Constitution provides

that “a victim of crime has a right . . . [t]o a speedy trial or

disposition and prompt and final conclusion of [a] case after

the conviction and sentence.” Ariz. Const. art. 2, § 2.1(A)(10)

(“Victims’ Bill of Rights”). But that provision does not give

victims a vested right to sustaining a conviction on appeal.

See State ex rel. Thomas v. Klein, 214 Ariz. 205, 209 ¶ 14, 150

P.3d 778, 782 (App. 2007) (recognizing that the Legislature may

“effectively limit the scope of the Victims’ Bill of Rights” by

“decriminaliz[ing] certain conduct or redefin[ing] the type of

conduct that qualifies as a criminal offense”). Therefore, SB

1449 “is a valid exercise of the Legislature’s power to
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retroactively grant new rights to criminal defendants.” Rios,

225 Ariz. at ___ ¶ 52, 237 P.3d at 1066.3

IV.

¶17 We address separately section 2 of SB 1449, which

states that the bill’s “purpose . . . is to clarify that the

legislature intended to make [SB 1145] retroactively applicable

to all cases” specified in section 1. 2009 Ariz. Sess. Laws,

ch. 190, § 2 (1st Reg. Sess.). Rios found this provision

“superfluous to [the] separation of powers analysis” but, even

if deemed unconstitutional, severable from and not fatal to SB

1449’s operative provision in section 1. 225 Ariz. at ___

¶¶ 29-34, 237 P.3d at 1060-62.

¶18 We agree. Although “the doctrine of separation of

powers does not permit us to accept legislative messages

regarding the meaning of its past actions,” State v. Rodriguez,

153 Ariz. 182, 187, 735 P.2d 792, 797 (1987), section 2 contains

no operative language, see Rios, 225 Ariz. at ___ ¶ 33, 237 P.3d

at 1061. However section 2 is characterized, it does not

undermine the constitutionality of the operative and unambiguous

3
  We do not address the various equal protection and due process
concerns first raised at oral argument by the State, which
suggested that SB 1449’s retroactive application of SB 1145 to
some but not all defendants, and its establishment of April 24,
2006, as the cut-off date, are arbitrary, under-inclusive, and
lack a rational basis. Nor do we address how SB 1145, as
amended by SB 1449, might apply to post-conviction proceedings
under Rule 32, Arizona Rules of Criminal Procedure.
10
provision in section 1. See Cronin v. Sheldon, 195 Ariz. 531,

538 ¶¶ 30, 32, 991 P.2d 231, 238 (1999) (concluding that,

although the preamble to the Employment Protection Act (EPA)

unconstitutionally “manifest[ed] the legislature’s intent to

usurp judicial authority in violation of the separation of

powers doctrine,” the preamble was not law and did not

invalidate the operative statutory text of the EPA).

V.

¶19 For the foregoing reasons, we hold that the

Legislature acted within its proper authority by enacting SB

1449. We therefore reverse Montes’ convictions and sentences,

vacate the court of appeals’ opinion, and remand the case to the

superior court for further proceedings.

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

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_____________________________________
Michael D. Ryan, Justice (Retired)

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