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 
2

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 
3

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. 
4

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. 
5

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 
6

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 
7

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 
8

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 
9

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 
10

“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”). 
11

¶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