separation of powers doctrine in Arizona

2025See Seisinger, 220 Ariz. 85 , ¶¶ 27-28 & 28 (“[W]hen a substantive statute conflicts with the common law, the statute prevails under a separation of powers analysis.”); see also Zambrano v. M & RC II LLC, 254 Ariz. 53 , ¶ 43 (2022) (courts “exercise great restraint in declaring public 19 DOE v. LENZNER MED.

2025It is fundamental to our legal system that when a substantive statute conflicts with an equitable principle under the common law, “the statute prevails under a separation of powers analysis.” See Seisinger, 220 Ariz. at 92 ¶ 28.

2011Agreeing with the state, the respondent judge found the statute “usurps the [Supreme] Court’s rulemaking authority and violates the separation of powers doctrine.” The respondent reasoned the statute does not supplement the rule but, quoting State v. Robinson, 153 Ariz. 191, 197 , 735 P.2d 801, 807 (1987), and State ex rel.

2011Agreeing with the state, the respondent judge found the statute “usurps the [Supreme] Court’s rulemaking authority and violates the separation of powers doctrine.” The respondent reasoned the statute does not supplement the rule but, quoting State v. Robinson, 153 Ariz. 191, 197 , 735 P.2d 801, 807 (1987), and State ex rel.

1999Woods v. Block, finding that it provides the necessary flexibility yet still maintains the goal of the separation of powers doctrine. 189 Ariz. 269, 276 , 942 P.2d 428, 435 (1997).

1999Woods v. Block, finding that it provides the necessary flexibility yet still maintains the goal of the separation of powers doctrine. 189 Ariz. 269, 276 , 942 P.2d 428, 435 (1997).

1992Jones, 142 Ariz. 302 , 689 P.2d 561 (App.1984) (prosecutor’s discretion to make or withhold a recommendation of alternative sentencing unconstitutionally encroached on the judicial function); Prentiss, 163 Ariz. 81 , 786 P.2d 932 (1989) (conditioning mitigation upon the prosecutor “alleging” certain statutory factors unconstitutionally encroached upon the sentencing discretion of the judiciary); Dykes, 163 Ariz. at 584 , 789 P.2d 1082 (App.1990) (requiring motion by prosecutor before judge could apply lesser sentence unconstitutionally violates the separation of powers doctrine).

1992Jones, 142 Ariz. 302 , 689 P.2d 561 (App.1984) (prosecutor’s discretion to make or withhold a recommendation of alternative sentencing unconstitutionally encroached on the judicial function); Prentiss, 163 Ariz. 81 , 786 P.2d 932 (1989) (conditioning mitigation upon the prosecutor “alleging” certain statutory factors unconstitutionally encroached upon the sentencing discretion of the judiciary); Dykes, 163 Ariz. at 584 , 789 P.2d 1082 (App.1990) (requiring motion by prosecutor before judge could apply lesser sentence unconstitutionally violates the separation of powers doctrine).

2011Recognizing that the distinction between a substantive and procedural rule of law can be “ ‘elusive,’ ” id. ¶ 29, quoting In re Shane B., 198 Ariz. 85, ¶ 9 , 7 P.3d 94, 97 (2000), the court stated, “The ultimate question is whether the statute enacts, at least in relevant part, law that effectively ‘creates, defines, and regulates rights,”’ id., quoting State v. Birmingham, 96 Ariz. 109, 110 , 392 P.2d 775, 776 (1964).

2011Recognizing that the distinction between a substantive and procedural rule of law can be “ ‘elusive,’ ” id. ¶ 29, quoting In re Shane B., 198 Ariz. 85, ¶ 9 , 7 P.3d 94, 97 (2000), the court stated, “The ultimate question is whether the statute enacts, at least in relevant part, law that effectively ‘creates, defines, and regulates rights,”’ id., quoting State v. Birmingham, 96 Ariz. 109, 110 , 392 P.2d 775, 776 (1964).

2011Collins v. Seidel, 142 Ariz. 587, 591 , 691 P.2d 678, 682 (1984), “tends to engulf’ it, finding the statute “extends well beyond ...

2011Collins v. Seidel, 142 Ariz. 587, 591 , 691 P.2d 678, 682 (1984), “tends to engulf’ it, finding the statute “extends well beyond ...

2010The statute as a whole may be saved by severing Section Two and leaving the operative provision in Section One intact. ¶ 30 “As a general matter, the separation of powers doctrine leaves creation of future statutory law to the legislative branch and determination of existing law and its application to past events to the judicial branch.” Cook v. Cook, 209 Ariz. 487, 494 , ¶ 24 n. 7, 104 P.3d 857, 864, n. 7 (App.2005) (quoting Murray, 194 Ariz. at 375, ¶ 9 , 982 P.2d at 1289 ).

2010The statute as a whole may be saved by severing Section Two and leaving the operative provision in Section One intact. ¶ 30 “As a general matter, the separation of powers doctrine leaves creation of future statutory law to the legislative branch and determination of existing law and its application to past events to the judicial branch.” Cook v. Cook, 209 Ariz. 487, 494 , ¶ 24 n. 7, 104 P.3d 857, 864, n. 7 (App.2005) (quoting Murray, 194 Ariz. at 375, ¶ 9 , 982 P.2d at 1289 ).

1988Hancock Enterprises v. Registrar of Contractors, 142 Ariz. 400, 405-06 , 690 P.2d 119, 124-25 (App.1984), to determine whether an act constitutes a violation of the separation of powers doctrine, we must conclude that neither the legislature nor the executive has, as a result of the passage of this statute, begun exercising powers “properly” belonging to either of the other branches of government.

1988Hancock Enterprises v. Registrar of Contractors, 142 Ariz. 400, 405-06 , 690 P.2d 119, 124-25 (App.1984), to determine whether an act constitutes a violation of the separation of powers doctrine, we must conclude that neither the legislature nor the executive has, as a result of the passage of this statute, begun exercising powers “properly” belonging to either of the other branches of government.

2011See 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 “manifested] 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).

2011See 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 “manifested] 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).

2007Ct., 131 Ariz. 431, 440 , 641 P.2d 1275, 1284 (1982) (“Under the doctrine of separation of powers, the judiciary has the exclusive power to declare ‘existing law.’ ”).

2007Ct., 131 Ariz. 431, 440 , 641 P.2d 1275, 1284 (1982) (“Under the doctrine of separation of powers, the judiciary has the exclusive power to declare ‘existing law.’ ”).

2002The separation of powers doctrine “mandates that each department act with the powers and functions properly belonging to it and that it not encroach on the power and functions delegated to the other departments.” State v. Ramsey, 171 Ariz. 409, 412 , 831 P.2d 408, 411 (App.1992).

2002The separation of powers doctrine “mandates that each department act with the powers and functions properly belonging to it and that it not encroach on the power and functions delegated to the other departments.” State v. Ramsey, 171 Ariz. 409, 412 , 831 P.2d 408, 411 (App.1992).

2000See Ahearn, 104 Ariz. at 253 , 451 P.2d at 33 ("The Governor... must ... have the power to select subordinates and to remove them if they are unfaithful.") (emphasis added). ¶ 29 But this case is different.

2000See Ahearn, 104 Ariz. at 253 , 451 P.2d at 33 ("The Governor... must ... have the power to select subordinates and to remove them if they are unfaithful.") (emphasis added). ¶ 29 But this case is different.

2022Id. (citing Baker v. Carr, 369 U.S. 186, 210-211 (1962)). ¶6 “Nowhere in the United States is [the separation of powers] more explicitly and firmly expressed than in Arizona.” Mecham v. Gordon, 156 Ariz. 297, 300 (1988).

1990Mecham v. Gordon, 156 Ariz. 297, 300 , 751 P.2d 957, 960 (1988) (citing Ariz. Const, art. 3).

2016State v. Amaral, 239 Ariz. 217, 219, ¶ 9 , 368 P.3d 925, 927 (2016) (appellate court reviews superior court’s summary dismissal of a Rule 32 proceeding for abuse of discretion). ¶7 First, as the superior court correctly determined, Miller is a significant change in the law and is retroactive.

2016State v. Amaral, 239 Ariz. 217, 219, ¶ 9 , 368 P.3d 925, 927 (2016) (appellate court reviews superior court’s summary dismissal of a Rule 32 proceeding for abuse of discretion). ¶7 First, as the superior court correctly determined, Miller is a significant change in the law and is retroactive.

2012The IRC’s mandate and authority to create and implement a redistrieting plan is constitutionally granted and prescribed, and an investigation under the OML cannot diminish the rights granted under the constitution. ¶ 70 Second, the IRC argues that, just as the legislature was not free to impose additional duties on the Commission on Appellate Court Appointments, as determined by Myers, 196 Ariz. at 522, ¶ 22 , 1 P.3d at 712 , it also “lacks authority to impose additional or conflicting open-meeting requirements beyond what is already specifically provided in Article IV's Open Meetings Clause.”

2012The IRC’s mandate and authority to create and implement a redistrieting plan is constitutionally granted and prescribed, and an investigation under the OML cannot diminish the rights granted under the constitution. ¶ 70 Second, the IRC argues that, just as the legislature was not free to impose additional duties on the Commission on Appellate Court Appointments, as determined by Myers, 196 Ariz. at 522, ¶ 22 , 1 P.3d at 712 , it also “lacks authority to impose additional or conflicting open-meeting requirements beyond what is already specifically provided in Article IV's Open Meetings Clause.”

2011Recognizing that the distinction between a substantive and procedural rule of law can be “ ‘elusive,’ ” id. ¶ 29, quoting In re Shane B., 198 Ariz. 85, ¶ 9 , 7 P.3d 94, 97 (2000), the court stated, “The ultimate question is whether the statute enacts, at least in relevant part, law that effectively ‘creates, defines, and regulates rights,”’ id., quoting State v. Birmingham, 96 Ariz. 109, 110 , 392 P.2d 775, 776 (1964).

2011Recognizing that the distinction between a substantive and procedural rule of law can be “ ‘elusive,’ ” id. ¶ 29, quoting In re Shane B., 198 Ariz. 85, ¶ 9 , 7 P.3d 94, 97 (2000), the court stated, “The ultimate question is whether the statute enacts, at least in relevant part, law that effectively ‘creates, defines, and regulates rights,”’ id., quoting State v. Birmingham, 96 Ariz. 109, 110 , 392 P.2d 775, 776 (1964).

2012The separation of powers doctrine “protect[s] one branch against the overreaching of any other branch” and is “part of an overall constitutional scheme to protect individual rights.” State v. Prentiss, 163 Ariz. 81, 84-85 , 786 P.2d 932, 935-36 (1989).

2012The separation of powers doctrine “protect[s] one branch against the overreaching of any other branch” and is “part of an overall constitutional scheme to protect individual rights.” State v. Prentiss, 163 Ariz. 81, 84-85 , 786 P.2d 932, 935-36 (1989).

2010That statute, we held, violated the separation of powers doctrine because, “[i]n an inter sese proceeding such as this adjudication, a court cannot be required [by the legislature] to incorporate an agreement that may affect the availability of water for other claimants or interfere with senior rights.” Id. ¶16 Here, the adjudication court applied the Special Order, not a statute enacted by the legislature.

2010That statute, we held, violated the separation of powers doctrine because, “[i]n an inter sese proceeding such as this adjudication, a court cannot be required [by the legislature] to incorporate an agreement that may affect the availability of water for other claimants or interfere with senior rights.” Id. ¶ 16 Here, the adjudication court applied the Special Order, not a statute enacted by the legislature.

2023Cf. State v. Dykes, 163 Ariz. 581, 584 (App. 1990) (Although the State may advocate for aggravated sentences, the prosecutor’s role may not infringe on the judicial function, as it would violate the separation-of-powers doctrine.).

1993In Dykes, 163 Ariz. at 584 , 789 P.2d at 1085 , we noted: A legislative enactment which unreasonably limits or hampers the judicial function violates the separation of powers doctrine embodied in Article 3.

2017In Ethridge, the court stated that “[a]n indefinite and incomplete statute may be held invalid on three bases: (1) the language used may not have sufficient legal significance to be capable of intelligent execution; (2) the statute may unduly delegate legislative powers in violation of the separation of powers doctrine under article 3 of the United States Constitution, and (3) as applied, the statute may violate due process under the Arizona Constitution.” (emphasis added) Id., 165 Ariz. at 104 . 35 STATE V.

2017In Ethridge , the court stated that “[a]n indefinite and incomplete statute may be held invalid on three bases: (1) the language used may not have sufficient legal significance to be capable of intelligent execution; (2) the statute may unduly delegate legislative powers in violation of the separation of powers doctrine under article 3 of the United States Constitution, and (3) as applied, the statute may violate due process under the Arizona Constitution.” (emphasis added) Id., 165 Ariz. at 104 , 796 P.2d at 906 .

2000Martin v. Reinstein, 195 Ariz. 293, 322 , 987 P.2d 779, 808 (1999) (upholding legislature's selection of rules to apply to new civil commitment procedure). ¶ 54 The distinction between what is constitutionally allowed by the separation of powers doctrine becomes apparent when we compare Section II of the majority opinion, from which I dissent, with Section V, in which I join.

2000Martin v. Reinstein, 195 Ariz. 293, 322 , 987 P.2d 779, 808 (1999) (upholding legislature's selection of rules to apply to new civil commitment procedure). ¶ 54 The distinction between what is constitutionally allowed by the separation of powers doctrine becomes apparent when we compare Section II of the majority opinion, from which I dissent, with Section V, in which I join.

2022Id. (citing Baker v. Carr, 369 U.S. 186, 210-211 (1962)). ¶6 “Nowhere in the United States is [the separation of powers] more explicitly and firmly expressed than in Arizona.” Mecham v. Gordon, 156 Ariz. 297, 300 (1988).

2009After commenting that the process engaged in by the Secretary “was thorough, exhaustive, complex, neutral, and fair,” the court decided to “exercise judicial restraint” by “leaving] the policy decisions in the hands of those empowered to make the decisions.” ¶ 16 “The federal political question doctrine flows from the basic principle of separation of powers and recognizes that some decisions are entrusted under the federal constitution to branches of government other than the judiciary.” Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 192, ¶ 12 , 165 P.3d 168, 170 (2007) (citing Baker v. Carr,

2022Id. (citing Baker v. Carr, 369 U.S. 186, 210-211 (1962)). ¶6 “Nowhere in the United States is [the separation of powers] more explicitly and firmly expressed than in Arizona.” Mecham v. Gordon, 156 Ariz. 297, 300 (1988).

2009After commenting that the process engaged in by the Secretary “was thorough, exhaustive, complex, neutral, and fair,” the court decided to “exercise judicial restraint” by “leaving] the policy decisions in the hands of those empowered to make the decisions.” ¶ 16 “The federal political question doctrine flows from the basic principle of separation of powers and recognizes that some decisions are entrusted under the federal constitution to branches of government other than the judiciary.” Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 192, ¶ 12 , 165 P.3d 168, 170 (2007) (citing Baker v. Carr,

2019The Brown analysis, however, was refined in State v. Hansen , which rejected a separation of powers challenge to statutory time limits for restitution payments that conflicted with the Arizona Rules of Criminal Procedure. 215 Ariz. 287 , 289 ¶ 8, 291 ¶ 18, 160 P.3d 166 , 168, 170 (2007).

2019The Brown analysis, however, was refined in State v. Hansen , which rejected a separation of powers challenge to statutory time limits for restitution payments that conflicted with the Arizona Rules of Criminal Procedure. 215 Ariz. 287 , 289 ¶ 8, 291 ¶ 18, 160 P.3d 166 , 168, 170 (2007).

2011The trial court agreed and therefore granted Governale additional time to retain a new expert witness. ¶ 3 Soon after the trial court’s ruling, this court issued an opinion in Seisinger v. Siebel, 219 Ariz. 163 , 195 P.3d 200 (App.2008), holding that § 12-2604 violated the separation of powers doctrine.

2011The trial court agreed and therefore granted Governale additional time to retain a new expert witness. ¶ 3 Soon after the trial court’s ruling, this court issued an opinion in Seisinger v. Siebel, 219 Ariz. 163 , 195 P.3d 200 (App.2008), holding that § 12-2604 violated the separation of powers doctrine.

2011See also Seis-inger, 220 Ariz. at 91, ¶ 24, 203 P.3d at 489 (stating, in a separation of powers analysis, “we must ... determine whether the challenged statutory provision is substantive or procedural”). ¶ 18 Garcia did not define “primary conduct,” but it held that a law that shifted the burden of proof, declared what types of conduct are no longer criminal or wrongful, and altered “the legal consequences that attached to such conduct at the time it was committed” was a law that regulated primary conduct and was therefore substantive in nature. 214 Ariz. at 253, ¶ 14 , 151 P.3d at 536 .

2009Id. ¶ 9. ¶ 11 Here, as in Murray , the legislature enacted Senate Bill 1449 in an effort to overrule retroactively our supreme court’s decision in Garcia v. Browning, which held that Senate Bill 1145’s changes to the burden of proof in cases in which a defendant has raised a justification defense could not be applied retroactively. 214 Ariz. 250 , ¶ 1, 151 P.3d at 534 .