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A couple weeks ago, I wrote this post discussing Arizona’s new anti-SLAPP (really, SAAPP) law, A.R.S. § 12-751: What’s An Anti-SLAPP Motion Under A.R.S. § 12-751?

In that post, I mentioned the fact a criminal defendant recently used the anti-SLAPP law to seek dismissal of misdemeanor trespassing charges in a case called State v. Koert. There isn’t a ton of detail about the underlying case available, but it appears the defendant was charged with criminal trespassing because she was involved in a student protest on the ASU campus.

After she was arrested and charged, the defendant filed a motion to dismiss under the anti-SLAPP law claiming the prosecution violated her First Amendment rights. The judge (a justice of the peace, which is a level below the Superior Court) ruled the defendant made a “prima facie” showing the government (Rachel Mitchell) was trying to punish her for exercising her First Amendment rights. The justice court then set a hearing to decide whether the charges should be dismissed under the anti-SLAPP law.

Unhappy with that result, Rachel Mitchell appealed by filing a special action in the superior court (which is how justice court rulings are appealed). Among other things, Rachel Mitchell argued the anti-SLAPP law was “unconstitutional” because it was created by the Arizona legislature (hardly a surprise that our legislature would have the balls to, ahem, pass new laws and shit…given that is exactly what legislatures exist to do).

Despite the fact that, by definition, the Arizona legislature CAN create new laws, like A.R.S. § 12-751, Rachel Mitchell argued this was unconstitutional because only the Arizona Supreme Court can create procedural rules, like the Rules of Criminal Procedure, the Rules of Civil Procedure, etc.

Here’s the breakdown — the Arizona Constitution says this state has a court system, and “judicial power shall be vested in an integrated judicial department consisting of a supreme court…”

As part of its job, the AZ Constitution explains the Arizona Supreme Court: “shall sit in accordance with rules adopted by it ….”

Got that? Arizona has a court system, and the top court in that system — the AZ Supreme Court — gets to create the procedural rules for the system. Simple.

Importantly, however, that is not the end of the issue. Despite having lots of power, the AZ Supreme Court does NOT have authority to create substantive rules of law, since that is a power vested exclusively in the legislature.

How do I know this? Because, once again, the Arizona Constitution says so:

The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.

Ariz. Const., Art. III.

Starting to see how this all fits together? We have a Supreme Court. We also have a legislature.

The legislature makes laws. And ONLY the legislature makes laws. See Ariz. Const., Art. 4, Part 1: “The legislative authority of the state shall be vested in the legislature ….”

The Supreme Court is not the legislature. It is the judiciary. The Supreme Court has the sole and exclusive authority for creating procedural rules in the court system. Procedural rules are things like how many pages can a pleading be, what font color is required, and how many days to you get to respond to a motion. Those are all procedural matters, and only the AZ Supreme Court can make rules for those things.

At the same time, the Arizona legislature has the exclusive power to establish new substantive laws. A substantive law is like: what’s the speed limit on the freeway? Or, is it OK to murder someone? Or, what is the maximum punishment for jaywalking?  Those are all substantive laws, which only the legislature has the power to create, change, or abolish.

OKAY, so what just happened in my bar case? Well, earlier today the judge issued this VERY helpful order: Briefing Re: Motion to Dismiss.

In this order, the court did EXACTLY what I predicted it would do when I posted that comment a couple of weeks ago — the judge wants to know whether the anti-SLAPP law violates the Arizona Supreme Court’s “exclusive” authority to regulate the practice of law. As I said in my earlier post, this is “separation of powers” argument that County Attorney Mitchell raised and then LOST in the Koert case. There, the Superior Court had this to say about that argument:

The legislature may not abrogate judicially-created rules of procedure. Seisinger v. Siebel, 220 Ariz. 85 (2009). To determine whether a statute impermissibly infringes on our Supreme Court’s procedural rulemaking authority, courts evaluate whether (1) there is a conflict between the statute and the rule, and (2) the statute is a substantive or a procedural law. State v. Brearcliffe, 254 Ariz. 579, 585, (2023). “Substantive law creates, defines and regulates rights” whereas a procedural law “prescribes the method of enforcing such rights or obtaining redress.”

This [anti-SLAPP] statute creates an affirmative defense to otherwise meritorious criminal actions where the motivations behind those actions are constitutionally impermissible. This is a substantive rather than procedural law and therefore this statute is not an unconstitutional infringement on the Supreme Court’s procedural rulemaking authority.

Under Advisement Ruling (filed 4/15/2026).

Oddly, I already mentioned this to the PDJ in my Reply In Support of Motion to Exceed Page Limits, filed on April 22, 2026. I literally raised the same issue, attached the ruling in Koert, and explained the anti-SLAPP law was NOT a violation of the Supreme Court’s authority to create procedural rules. It’s also not a violation of the Supreme Court’s authority to regulate the practice of law, because the Court has no power to make illegal laws or to apply laws in an illegal way (in fact, the Supreme Court has no power to create any substantive law).

Just consider this example — let’s all agree the Arizona Supreme Court has the exclusive authority to “regulate” the practice of law. What happens if the Supreme Court issues an order that say: “All lawyers with brown eyes are deemed unfit to practice law in this state, and any lawyer with brown eyes shall be immediately arrested and summarily executed by firing squad.”

Would that order pass constitutional muster? I mean, come on, we just agreed the Supreme Court has the exclusive power to regulate the practice of law…so surely killing all brown eyed lawyers falls within that power, right?

Obviously not. The Supreme Court cannot create substantive law. Deciding who lives and who dies is not a matter of procedure. It’s substantive….along the lines of “life, liberty and happiness”.

The Arizona Supreme Court also cannot create any laws that violate the United States Constitution. We know this because the U.S. Supreme Court already warned Arizona of precisely that limit in Bates v. State Bar of Arizona. There are also countless other cases from the U.S. Supreme Court that say the same thing — the U.S. Constitution is the supreme law of the law, so when a state tries to take a dump on the U.S. Constitution, the state loses, 100% of the time.

Having said all this, the PDJ wants both sides to submit briefing on the question of whether the anti-SLAPP law improperly steps on the Supreme Court’s right to create procedural rules and to regulate the practice of law. I think the fact the judge asked for this is EXTREMELY helpful. She could have just ruled against me. But she didn’t.

That’s a good sign….for me.