We begin the new year with a criminal case. This one has a constitutional issue but is intriguing mostly because of the odd way it seems to have been handled.

Montes was accused of murder. He pleaded self-defense. The statute put the burden of proving that on him; before his trial the Legislature passed a statute reversing the burden but our Supreme Court had held, in a case named Garcia v. Browning, that it was not retroactive. Montes was convicted. He appealed, arguing a defect (of a type not relevant to this opinion) in the instructions and a sentencing error.

After the appeal had been briefed and submitted, Montes filed a “Motion to Suspend Rules and to Permit Supplemental Briefing on a Significant Change in the Law.” The Legislature had just passed (or was about to, the opinion is not clear), in response to Garcia v. Browning, a new law making retroactive its reversal of the self-defense burden of proof. The Court of Appeals denied the motion and, about two weeks later, issued a memorandum opinion affirming the conviction and sentencing. (You might not find it using links at the right, as the court apparently pulled it from the memo list when this opinion was issued even though this does not supersede it; perhaps the court will rethink that, in the mean time this link may work for a while. This opinion’s description of the sequence of events, by the way, is vague, so we’ve looked at the on-line file to check the dates.)

Montes moved for reconsideration, again arguing the new retroactivity statute, which came into effect a few days thereafter. This opinion was written in response to that motion, is called an “Opinion,” considers the retroactivity issue that the court had earlier refused to consider, concludes that the retroactivity statute is unconstitutional – and then announces that it is denying the Motion for Reconsideration.

The opinion realizes that it first needs to explain why the court didn’t simply grant the motion for supplemental briefing in the first place. The court admits that it had the power, and good reason, to do so. But, it says, “it would have been inappropriate to presume an outcome of the appeal or extend or accelerate the processing of the case based on the impending effective date of the new statute. Furthermore, it would have been inappropriate to presume what the parties would do if the case were decided before the effective date.” What does that mean? Well, whatever it means, we shouldn’t have to figure it out. If the court had coherent reasons for denying the motion then the opinion should state them coherently, so that the profession can be appropriately guided; instead we get obscure murmurings that beg more questions than they answer. Perhaps, though, the court meant this: “When Montes asked to file supplemental briefs we hadn’t even begun to think about the case, so maybe we would have reversed even without his supplemental briefing. Besides, we didn’t want to have to read any more briefs like the first one he filed [which the memo opinion criticized].” Perhaps it also meant “We weren’t sure whether we could or should consider a statute that hadn’t gone into effect yet.” And maybe it meant “We thought the parties might cut a deal after our opinion and the case would go away.” Or maybe not. Maybe it meant “since we work to deadlines around here, we wanted to get something out the door even if we would have to put something else out later.” And maybe its just the court’s way to say “we changed our minds” or “we goofed” – or, rather, to avoid saying either.

As for the constitution, the Supreme Court held in Murray, 194 Ariz. 373, that the Legislature can’t undo a judicial decision by amending a statute retroactively. That’s a violation of the separation of powers. It makes no difference that someone claims that the amendment merely “clarified” earlier legislative intent. The self-defense-retroactivity statute therefore didn’t change the law of Garcia.

The court concludes that because he was properly convicted, “We deny Montes’s (sic) motion for reconsideration.” We’re always eager to learn: is there a rule or case somewhere that makes the definition of “reconsideration” outcome-oriented? The only way we can understand the disposition is to assume that reconsideration isn’t officially considered “granted” unless its effect is to change the result. It is otherwise hard to figure how the denial of a post-opinion motion could result in another opinion (rather than an order) that considers for four pages the substance of the issues that the motion asked the court to consider. We, perhaps in simple ignorance, would have said “the Motion for Reconsideration is granted; the conviction is nevertheless affirmed.”