Bill Text: AZ HB2110 | 2017 | Fifty-third Legislature 1st Regular | Introduced
Bill Title: Uncontested civil forfeiture; repeal
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2017-01-24 - House FPRPP Committee action: Do Pass, voting: (8-0-0-1-0-0) [HB2110 Detail]
Download: Arizona-2017-HB2110-Introduced.html
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REFERENCE TITLE: uncontested civil forfeiture; repeal |
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State of Arizona House of Representatives Fifty-third Legislature First Regular Session 2017
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HB 2110 |
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Introduced by Representative Thorpe
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AN ACT
amending section 13‑4308, Arizona Revised Statutes; repealing section 13‑4309, Arizona Revised Statutes; amending section 13‑4311, Arizona Revised Statutes; relating to civil forfeiture.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-4308, Arizona Revised Statutes, is amended to read:
13-4308. Commencement of proceedings
A. The attorney for the state shall determine whether it is probable that the property is subject to forfeiture and, if so, may cause the initiation of uncontested or judicial proceedings against the property. If, on inquiry and examination, the attorney for the state determines that the proceedings probably cannot be sustained or that justice does not require the institution of such proceedings, he the attorney for the state shall notify the seizing agency and immediately authorize the release of the seizure for forfeiture on the property or on any specified interest in it.
B. If the state fails to initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within sixty days after its seizure for forfeiture, or fails to pursue forfeiture of such property on which a timely claim has been properly filed by filing a complaint, information or indictment pursuant to section 13‑4311 or 13‑4312 within sixty days after notice of pending forfeiture or, if uncontested forfeiture has been made available, within sixty days after a declaration of forfeiture, whichever is later, such property shall be released from its seizure for forfeiture on the request of an owner or interest holder, pending further proceedings pursuant to this chapter, which shall be commenced within seven years after actual discovery of the last act giving rise to forfeiture.
C. If the property sought to be forfeited is real property, including fixtures, the attorney for the state may file a lis pendens or a notice of pending forfeiture with respect to the property with the county recorder of the county in which the property is located, in addition to any lien provided by section 13‑2314.02, without a filing fee or other charge.
Sec. 2. Repeal
Section 13-4309, Arizona Revised Statutes, is repealed.
Sec. 3. Section 13-4311, Arizona Revised Statutes, is amended to read:
13-4311. Judicial in rem forfeiture proceedings
A. If a forfeiture is authorized by law, it shall be ordered by a court on an action in rem brought by the state pursuant to a notice of pending forfeiture or a verified complaint for forfeiture. The state may serve the complaint in the manner provided by section 13‑4307 or by the Arizona rules of civil procedure.
B. A civil in rem action may be brought by the state in addition to or in lieu of the civil and criminal in personam forfeiture procedures set forth in sections 13‑4312 and 13‑4313 or the uncontested civil forfeiture procedures set forth in section 13‑4309. Judicial in rem forfeiture proceedings are in the nature of an action in rem and are governed by the Arizona rules of civil procedure unless a different procedure is provided by law.
C. On the filing of a civil in rem action by the state in superior court the clerk of the court in which the action is filed shall provide, and the attorney for the state may provide, the notice of pending forfeiture required by section 13‑4307 unless the files of the clerk of the court reflect that such notice has previously been made.
D. An owner of or interest holder in the property may file a claim against the property, within thirty days after the notice, for a hearing to adjudicate the validity of his claimed interest in the property. The court shall hold the hearing shall be held by the court without a jury.
E. The claim shall be signed by the claimant under penalty of perjury and shall set forth all of the following:
1. The caption of the proceeding as set forth on the notice of pending forfeiture or complaint and the name of the claimant.
2. The address at which the claimant will accept future mailings from the court or attorney for the state.
3. The nature and extent of the claimant's interest in the property.
4. The date, the identity of the transferor and the circumstances of the claimant's acquisition of the interest in the property.
5. The specific provisions of this chapter relied on in asserting that the property is not subject to forfeiture.
6. All facts supporting each such assertion.
7. Any additional facts supporting the claimant's claim.
8. The precise relief sought.
F. Copies of the claim shall be mailed to the seizing agency and to the attorney for the state. No extension of time for the filing of a claim may be granted.
G. Within twenty days after service of the complaint, the claimant shall file and serve the answer to the complaint and the answers to interrogatories and requests for admission if any were served with the complaint. The answer shall be signed by the owner or interest holder under penalty of perjury, shall comply with the Arizona rules of civil procedure relating to answers and shall comply with all of the requirements for claims. If no proper answer is timely filed, the attorney for the state shall proceed as provided in sections 13‑4314 and 13‑4315 with ten days' notice to any person who has timely filed a claim that has not been stricken by the court.
H. At the time of filing its pleadings or at any other time not less than thirty days before the hearing, the state and any claimant who has timely answered the complaint may serve discovery requests on any other party, the answers or response to which shall be due in twenty days, and may take the deposition of any person at any time after the expiration of fifteen days after the filing and service of the complaint. Any party may move for summary judgment at any time after an answer or responsive pleading is served and not less than thirty days before the hearing. The state, as the party defending against the claim, may make offers of judgment at any time more than ten days before the hearing begins.
I. An injured person may submit a request for compensation from forfeited property to the court at any time before the earlier of the entry of a final judgment or an application for an order of the forfeiture of the property, or if a hearing pursuant to subsections K, L and M of this section is held, not less than thirty days before the hearing. The request shall be signed by the requestor under penalty of perjury and shall set forth all of the following:
1. The caption of the proceeding as set forth on the notice of pending forfeiture or complaint and the name of the requestor.
2. The address at which the requestor will accept future mailings from the court or parties to the action.
3. The property subject to forfeiture from which the requestor seeks compensation.
4. The nature of the economic loss sustained by the requestor.
5. All facts supporting each such assertion.
6. Any additional facts supporting the request.
7. The amount of economic loss for which the requestor seeks compensation.
J. If a proper request for compensation from forfeited property is timely filed, the court shall hold a hearing to establish whether there is a factual basis for the request. The requestor has the burden of establishing by a preponderance of the evidence that the requestor is an injured person who sustained economic loss.
K. The hearing on the claim, to the extent practicable and consistent with the interest of justice, shall be held sixty days after all parties have complied with the disclosure required by rule 26.1 of the Arizona rules of civil procedure. The court may consolidate the hearing on the claim with a hearing on any other claim concerning the same property.
L. At the hearing, the claimant may testify, present evidence and witnesses on the claimant's own behalf and cross‑examine witnesses who appear at the hearing. The state may present evidence and witnesses and cross‑examine witnesses who appear at the hearing.
M. At the hearing, the state has the burden of establishing by a preponderance of the evidence that the property is subject to forfeiture under section 13‑4304. Any claimant who has previously established by a preponderance of the evidence that the claimant is an owner of or interest holder in the property has the burden of establishing by a preponderance of the evidence that the claimant's interest in the property is exempt from forfeiture under section 13‑4304.
N. In accordance with its findings at the hearing:
1. The court shall order an interest in property returned or conveyed to a claimant, if any, who has established by a preponderance of the evidence that the claimant is an owner of or interest holder in the property if either of the following applies:
(a) The state has failed to establish by a preponderance of the evidence that the interest is subject to forfeiture under section 13‑4304.
(b) The claimant has established by a preponderance of the evidence that the interest is exempt from forfeiture under section 13‑4304.
2. The court shall order all other property, including all interests in the property, forfeited to this state and proceed pursuant to sections 13‑4314 and 13‑4315.
3. If the court finds that a requestor is an injured person the court shall determine the amount of the injured person's economic loss caused by the conduct giving rise to the forfeiture of the designated property and shall require the following:
(a) If the designated property is not contraband and is not altered or designed for use in conduct giving rise to forfeiture, the attorney for the state shall sell the property as provided in section 13‑4315, subsection A, paragraph 2, and shall apply the resulting balance to compensate the injured person's economic loss in the amount found by the court.
(b) If the balance is insufficient to compensate the economic loss of all injured persons the attorney for the state shall distribute the balance among the injured persons according to a method determined by the court.
(c) After compensation of all injured persons, the attorney for the state shall transmit ten per cent percent of the remaining balance, if any, to the Arizona criminal justice commission for deposit in the victim compensation and assistance fund established by section 41‑2407.
(d) The attorney for the state shall deposit the remainder of the balance, if any, in an appropriate anti‑racketeering revolving fund established by section 13‑2314.01 or 13‑2314.03.
