                   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



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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



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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,



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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.



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¶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



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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




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