State v. Hansen

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-06-0459-PR
Appellee, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CR 05-0520
KAREN MARIE HANSEN aka KAREN )
MARIE KENNEDY, ) Yavapai County
) Superior Court
Appellant. ) No. CR 2003-0191
)
)
) O P I N I O N
__________________________________)

Order of the Court of Appeals, Division One
Dated October 6, 2006

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
214 Ariz. 34, 147 P.3d 1050 (2006)

VACATED; REMANDED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel,
Criminal Appeals Section
Joseph T. Maziarz, Assistant Attorney General
Attorneys for State of Arizona

ABIGAIL JENSEN PC Prescott
By Abigail Jensen
Attorney for Karen Marie Hansen
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 Arizona Revised Statutes (A.R.S.) section 13-804.D

(2001) directs that “[r]estitution payments . . . shall not be
stayed if the defendant files a notice of appeal, and the

payments may be held by the court pending the outcome of an

appeal.” Arizona Rule of Criminal Procedure 31.6 provides in

relevant part that “[a] sentence to pay a fine or restitution

shall be stayed pending appeal.” This case requires us to

decide whether A.R.S. § 13-804.D and Rule 31.6 conflict and, if

so, which provision controls. For the reasons stated below, we

hold that these provisions conflict and that A.R.S. § 13-804.D

governs because it is a valid exercise of the legislature’s

rulemaking authority under the Victims’ Bill of Rights (VBR),

Article 2, Section 2.1 of the Arizona Constitution.

I.

¶2 After being convicted of fraudulent schemes and

artifices in violation of A.R.S. § 13-2310 (2001), and theft of

$25,000 or more in violation of A.R.S. § 13-1802 (2001),

petitioner Karen Marie Hansen was sentenced to concurrent terms

of imprisonment and ordered to pay $65,466.03 in restitution.

Consistent with A.R.S. § 31-254.D.4 (Supp. 2006), the Yavapai

County Superior Court ordered Hansen to pay restitution “[f]rom

30 percent of compensation earned while in prison until paid in

full or [she] is released; any balance [must be paid] within 180

days of release.” As of June 22, 2006, the Arizona Department

of Corrections (DOC) had withheld $13.79 from Hansen’s wages

earned while in prison and forwarded the money to the superior

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court. The clerk of the court distributed the money to Hansen’s

victims.

¶3 Hansen appealed her convictions and, relying on Rule

31.6, moved the court of appeals to enjoin DOC from withholding

restitution during the pendency of her appeal and to restore the

money previously withheld.1 The State opposed Hansen’s motion on

the ground that A.R.S. § 13-804.D, rather than Rule 31.6,

controls because the relevant subject matter is substantive and

within the sole province of the legislature. Cf. Ariz. Const.

art. 3 (keeping “separate and distinct . . . the powers properly

belonging” to the separate branches of government). Conceding

that Rule 31.6 and A.R.S. § 13-804.D conflict, Hansen contended

that the Rule should govern because the subject matter is

procedural and A.R.S. § 13-804.D therefore constitutes an

impermissible legislative encroachment on this Court’s

constitutional authority to promulgate rules of procedure. See

Ariz. Const. art. 6, § 5, cl. 5 (conferring upon this Court the

“[p]ower to make rules relative to all procedural matters in any

court”).

¶4 In an unpublished order dated October 6, 2006, the

court of appeals denied Hansen’s motion to stay her restitution

1
Hansen’s underlying appeal of her conviction is pending
before the court of appeals and is not at issue here.

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payments, but ordered that all withholdings be retained by the

clerk of the superior court during the pendency of Hansen’s

appeal. The court of appeals subsequently issued an opinion

explaining its order. State v. Hansen, 214 Ariz. 34, 147 P.3d

1050 (App. 2006). The court concluded that A.R.S. § 13-804.D

and Rule 31.6 do not conflict, reasoning that, when read

together, “Rule 31.6 stays restitution payments to victims

pending appeal, but it does not stay the defendant’s obligation

under A.R.S. § 13-804(D) to make restitution payments to the

clerk of the court pending the appeal.” Id. at 35 ¶ 10, 147

P.3d at 1051. The court also determined that A.R.S. § 13-804.D

requires courts to “withhold disbursement of . . . restitution

payments when a defendant’s appeal is pending.” Id. at ¶ 9.

¶5 Hansen petitioned for review, which we granted because

this case presents an issue of statewide importance. We invited

the parties to submit supplemental briefs discussing whether

A.R.S. § 13-804.D falls within the legislature’s authority to

enact procedural rules related to victims’ rights under the VBR.

We have jurisdiction under Article 6, Section 5, Clause 3 of the

Arizona Constitution and Arizona Rule of Criminal Procedure

31.19.

II.

¶6 Interpreting rules, statutes, and constitutional

provisions raises questions of law, which we review de novo.

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See Pima County v. Pima County Law Enforcement Merit Sys.

Council, 211 Ariz. 224, 227 ¶ 13, 119 P.3d 1027, 1030 (2005)

(rule and statute); Duncan v. Scottsdale Med. Imaging, Ltd., 205

Ariz. 306, 308 ¶ 2, 70 P.3d 435, 437 (2003) (statute and

constitution).

A.

¶7 When construing statutes, we apply “fundamental

principles of statutory construction, the cornerstone of which

is the rule that the best and most reliable index of a statute’s

meaning is its language and, when the language is clear and

unequivocal, it is determinative of the statute’s construction.”

Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293,

296 ¶ 8, 152 P.3d 490, 493 (2007) (quoting Janson ex rel. Janson

v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991)).

We employ the same approach when interpreting our rules. State

ex rel. Romley v. Superior Court (Stewart), 168 Ariz. 167, 168-

69, 812 P.2d 985, 986-87 (1991). Rules and statutes “should be

harmonized wherever possible and read in conjunction with each

other.” Phoenix of Hartford, Inc. v. Harmony Rests., Inc., 114

Ariz. 257, 258, 560 P.2d 441, 442 (App. 1977).

¶8 Applying these principles, we conclude that A.R.S. §

13-804.D and Rule 31.6 cannot be harmonized. The statute and

the rule contain patently contradictory instructions as to

whether restitution payments are stayed pending appeal. The

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statute states that the payments shall not be stayed during an

appeal, and the rule directs that a sentence to pay restitution

shall be stayed pending appeal. Although we attempt to construe

statutes and rules in a way that averts needless constitutional

tension, State v. Gomez, 212 Ariz. 55, 60 ¶ 28, 127 P.3d 873,

878 (2006), we cannot create harmony where none exists. Because

the plain language of these two provisions conflicts, we next

determine whether the statute or the rule prevails.

B.

¶9 Under the Arizona Constitution, the legislature

possesses those powers “not expressly prohibited or granted to

another branch of the government.” Adams v. Bolin, 74 Ariz.

269, 283, 247 P.2d 617, 626 (1952). Because “[t]he Constitution

. . . vests the power to make procedural rules exclusively in

this court,” however, “the legislature lacks authority to enact

a statute ‘if it conflicts with or “tends to engulf”’ this

court’s . . . rulemaking authority.” State ex rel. Napolitano

v. Brown, 194 Ariz. 340, 342 ¶ 6, 982 P.2d 815, 817 (1999)

(quoting State v. Robinson, 153 Ariz. 191, 197, 735 P.2d 801,

807 (1987)). Accordingly, when a statute and rule conflict, we

traditionally inquire into whether the matter regulated can be

characterized as substantive or procedural, the former being the

legislature’s prerogative and the latter the province of this

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Court. See, e.g., id. at ¶¶ 5-7; Marsin v. Udall, 78 Ariz. 309,

312, 279 P.2d 721, 723 (1955).

¶10 The State contends, and Hansen concedes, that if

A.R.S. § 13-804.D is substantive, it indisputably governs. See

State v. Murray, 194 Ariz. 373, 375 ¶ 6, 982 P.2d 1287, 1289

(1999) (“Within constitutional limits, the legislature is vested

with plenary power to change the substantive law prospectively .

. . .”); see also Brown, 194 Ariz. at 342 ¶ 5, 982 P.2d at 817

(“In Arizona, the legislature is endowed with the legislative

power of the State, and has plenary power to consider any

subject within the scope of government unless the provisions of

the Constitution restrain it.”). The State further argues,

however, that even if the statute is procedural, A.R.S. § 13-

804.D constitutes a valid exercise of the legislature’s

procedural rulemaking powers under the VBR. Because resolution

of the State’s second argument potentially avoids the need to

characterize the statute as substantive or procedural, we

assume, without deciding, that A.R.S. § 13-804.D is procedural.

¶11 In 1990, the voters amended the Arizona Constitution

to include the VBR. See Ariz. Const. art. 2, § 2.1; State v.

Roscoe, 185 Ariz. 68, 70, 912 P.2d 1297, 1299 (1996). Two

provisions of the VBR permit the legislature to enact procedural

rules in the context of victims’ rights. Article 2, Section

2.1(A)11 of the Arizona Constitution provides that “a victim of

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crime has a right” to “have all rules governing criminal

procedure and the admissibility of evidence in all criminal

proceedings protect victims’ rights and to have these rules be

subject to amendment or repeal by the legislature to ensure the

protection of these rights.” Article 2, Section 2.1(D) provides

that “[t]he legislature, or the people by initiative or

referendum, have the authority to enact substantive and

procedural laws to define, implement, preserve and protect the

rights guaranteed to victims by this section.”

¶12 The legislature’s power to promulgate rules under the

VBR is not unlimited. “[T]he scope of legislative rulemaking

power under the VBR extends to those rules that define,

implement, preserve, and protect the specific rights unique and

peculiar to crime victims, as guaranteed and created by the

VBR.” Brown, 194 Ariz. at 343 ¶ 11, 982 P.2d at 818; see also

Slayton v. Shumway, 166 Ariz. 87, 92, 800 P.2d 590, 595 (1990)

(explaining that the legislature’s rulemaking authority under

the VBR extends only to “procedural rules pertaining to victims

and not [to] the substantive general subject of the rulemaking

power”).

¶13 In Brown, we rejected an argument that the legislature

exercised its rulemaking power under the VBR when it adopted

statutory time limits for filing petitions for post-conviction

relief that conflicted with Arizona Rule of Criminal Procedure

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32.4.c. 194 Ariz. at 341 ¶¶ 1-2, 982 P.2d at 816. We based our

conclusion on three considerations. “Most importantly,” because

the statute did “not create rights or involve rights unique and

specific to victims” and did not “protect the enumerated rights

of the VBR,” it exceeded the legislature’s limited rulemaking

authority under the VBR. Id. at 343-44 ¶¶ 11-13, 982 P.2d at

818-19. In addition, no evidence “support[ed] the State’s

contention that the legislature enacted the [statute] pursuant

to the VBR.” Id. at 342 ¶ 9, 982 P.2d at 817. Finally, it was

unclear whether the statute in question actually advanced

victims’ rights. Id. at 342-43 ¶ 10, 982 P.2d at 817-18.

¶14 We conclude that, unlike the statute we considered in

Brown, A.R.S. § 13-804.D falls within the legislature’s

rulemaking power under the VBR for several reasons. First, and

most importantly, this statute affects rights unique and

specific to victims. One of the rights specifically enumerated

in the VBR is the right to “receive prompt restitution from the

person or persons convicted of the criminal conduct that caused

the victim’s loss or injury.” Ariz. Const. art. 2, § 2.1(A)8.

Indeed, we have previously explained that “the right to receive

prompt restitution from the perpetrator or perpetrators” is

“unique and peculiar to crime victims.” Brown, 194 Ariz. at 343

¶ 12, 982 P.2d at 818. Because the text of A.R.S. § 13-804.D

“involve[s] rights unique and specific to victims” and will

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“protect [an] enumerated right[] of the VBR,” it is more likely

to fall within the legislature’s rulemaking authority under the

VBR. Id. at 343-44 ¶ 13, 982 P.2d at 818-19.

¶15 Second, legislative history indicates that the

legislature intended to exercise its VBR authority when it

enacted A.R.S. § 13-804.D. Cf. Brown, 194 Ariz. at 342 ¶ 9, 982

P.2d at 817 (considering lack of evidence that legislature

intended to exercise its VBR authority relevant in rejecting

claim that legislature had enacted a statute pursuant to the

VBR). Proposed initially as House Bill (H.B.) 2015, 43d Leg.,

1st Reg. Sess. (Ariz. 1997), the session law later codified in

part as A.R.S. § 13-804.D is titled “[a]n act . . . relating to

crime victims’ rights.” 1997 Ariz. Sess. Laws 853, 853, 1st

Reg. Sess., ch. 126. Moreover, the legislature apparently

intended to implement a victim’s right to prompt restitution

despite the existence of competing rights. See Senate Fact

Sheet for H.B. 2015, 43d Leg., 1st Reg. Sess. (Ariz. 1997)

(explaining that under H.B. 2015, restitution payments will “not

be stayed pending an appeal” because “under the constitution,

all victims who receive compensation are to receive ‘prompt

restitution,’” but recognizing that “[t]he situation becomes

problematic when the defendant exercises his or her right to

appeal the restitution decision”).

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¶16 Finally, A.R.S. § 13-804.D advances victims’ rights by

permitting payments during an appeal. Rule 31.6, promulgated

well before passage of the VBR, see Ariz. R. Crim. P. 31.6

(1973), automatically stays “[a] sentence to pay a fine or

restitution . . . pending appeal.” Conversely, A.R.S. § 13-

804.D prohibits staying restitution payments and, while

permitting payments to be “held by the court pending the outcome

of an appeal,” abandons the automatic stay previously required

under Rule 31.6. Because the statute enhances the likelihood

that victims of crime will receive prompt restitution, the

statute advances victims’ rights.

¶17 Because the legislature enacted A.R.S. § 13-804.D to

protect an enumerated right in the VBR that is unique and

specific to victims, and because A.R.S. § 13-804.D also advances

this right, we conclude that the statute falls within the

legislature’s limited rulemaking authority under the VBR. See

Ariz. Const. art. 2, § 2.1(A)11, (D).

III.

¶18 For these reasons, we affirm the order of the court

of appeals dated October 6, 2006, vacate the subsequent opinion

of the court of appeals providing the rationale for its order,

and remand to the court of appeals for further proceedings

consistent with this opinion.

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 _______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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