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

2
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

3
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,

4
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.

5
¶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

6
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

7