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
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Opinion of the Court of Appeals Division Two
223 Ariz. 337, 223 P.3d 681 (App. 2009)
VACATED
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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
2
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
3
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.
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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:
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Rebecca White Berch, Chief Justice
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Andrew D. Hurwitz, Vice Chief Justice
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W. Scott Bales, Justice
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_____________________________________
Michael D. Ryan, Justice (Retired)
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