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2008 Arizona Judicial Branch End-of Session Legislative Report Cover
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Chapter 8

SB1018

Effective Date
General

Item of interest to:
Superior Court:
Clerk of the Court
Court Administrator
Clerk
Judge
Justice Court:
Court Administrator
Clerk
Justice of the Peace
 
 

WRIT OF RESTITUTION; JUDGMENT
Sen. Chuck Gray

A.R.S. § 12-1178 is amended to specifically state it is applicable to forcible entry and detainer.

Statute Amended:  A.R.S. §12-1178

Court Impact:  Technical addition of forcible entry and detainer or forcible detainer to A.R.S. §12-1178.

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Chapter 46

HB2587

Effective Date
General

Item of interest to:
Superior Court:
Clerk of the Court
Court Administrator
Clerk
Judge
Justice Court:
Court Administrator
Clerk
Justice of the Peace
 
Administrative Office of the Courts

EXTENSION OF CREDIT; IDENTITY THEFT
Rep. Robson

A lender who does not use a consumer credit report in approving an application for an extension of credit is prohibited from lending money or extending credit unless the lender takes reasonable steps prior to extending credit or lending money to verify the consumer’s identity and confirm that the application for extension of credit is not the result of an identity theft.

A lender who uses a consumer credit report in approving an application for an extension of credit is required to take reasonable steps to verify the consumer’s identity and confirm that the application for extension of credit is not the result of identity theft if:

  • The lender was notified that a police report was filed with a consumer reporting agency and that the applicant was a victim of identity theft, or
  • The creditor was notified that the applicant placed a fraud alert or security freeze on the applicant’s credit report.

If a consumer proves by a preponderance of evidence that an extender of credit extended credit without taking reasonable steps to verify the consumer’s identity, it may be inferred that someone other than the consumer received the extension of credit.

A violation of A.R.S. §44-1698 (consumer credit reports; extension of credit; identity theft; security freeze; definition) constitutes an unlawful practice under A.R.S. §44-1522 (unlawful practices; intended interpretation of provisions), relating to consumer fraud, and is subject to enforcement by the Attorney General or through private action. Injunctive relief may be sought in order to prevent future violations of A.R.S. §44-1698. The remedies in the bill are not the only remedies available to a person whose identity was used to secure an extension of credit. Exclusions include increases in, changes to or reviews of existing open-end credit plans from qualifying as extensions of credit. Financial institutions that are required to have a customer identification program pursuant to federal regulation are exempted.

“Reasonable steps” is defined as any commercially reasonable action taken by an extender of credit that is intended to improve identity verification or confirmation or to lessen the likelihood of identity theft or aggravated identity theft.

Statute created:  A.R.S. § 44-1698

Court Impact:  Provides that if a consumer proves by a preponderance of evidence that an extender of credit extended credit without taking reasonable steps to verify the consumer’s identity, it may be inferred that someone other than the consumer received the extension of credit.

States that a violation of A.R.S. § 44-1698 constitutes an unlawful practice under A.R.S. §44-1522, relating to consumer fraud, and is subject to enforcement by the Attorney General or through private action.

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Chapter 96

HB2123

Effective Date
General

Item of interest to:
Superior Court:
Clerk of the Court
Court Administrator
Clerk
Judge
Justice Court:
Court Administrator
Clerk
Justice of the Peace
 
Administrative Office of the Courts

LANDLORD CHARGES; UTILITIES
Rep. McClure

In pertinent part, a landlord who leases rental spaces for long-term storage of recreational vehicles may charge separately for gas, water, electricity, trash, and sewer services as permitted by statute. A tenant who believes a landlord is not in compliance with this section must provide written notice to the landlord regarding the alleged violation. If the dispute is not resolved within 30 days after the notice is received by the landlord, the tenant may file a civil complaint in justice court. The court must award the prevailing party court costs and reasonable attorney fees.

Statute amended:  A.R.S. § 33-2107

Court Impact:  Allows for a civil action in justice court resulting from a dispute between a landlord and a tenant involving billing for gas, water and electrical utilities. The court must award the prevailing party court costs and reasonable attorney fees.

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Chapter 150

HB2623

Effective Date
General

Item of interest to:
Superior Court:
Court Administrator
Judge
Justice Court:
Court Administrator
Justice of the Peace
 
Administrative Office of the Courts

CONSTABLES; PEACE OFFICERS STATUS
Rep. Pearce

The definition of a peace officer is expanded to include constables, however, a constable has peace officer authority only during performance of official duties. Deputies appointed by constables are required to meet the minimum peace officer qualifications set forth by the Arizona Peace Officers Standards and Training board.

Statutes amended:  A.R.S. §13-105, 22-131, 41-1823

Court Impact:  Informational, constables are now included in the definition of peace officers but only in the performance of their official duties. A deputy constable must now be certified by Arizona Peace Officers Standards and Training board.

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Chapter 152

HB2745

Effective Date
Emergency
05/01/2008

Item of interest to:
Superior Court:
Chief Probation Officer
Clerk of the Court
Court Administrator
Clerk
Judge
Justice Court:
Court Administrator
Clerk
Justice of the Peace
Municipal Court:
Court Administrator
Clerk
Judge Magistrate
Administrative office of the Courts

EMPLOYER SANCTIONS AMENDMENTS
Rep. Pearce

The bill makes significant changes to the Employer Sanctions Law from last year including:

  1. Expanding statutory identity theft:  The definition of “taking the identity of another person” is expanded to include accepting personal identification information of another person with the intent of obtaining or continuing employment. The definition of trafficking in the identity of another person” is expanded to include the intent of obtaining or continuing employment.
  2. Establishing protocols for allegations of and punishments for violations of employing unauthorized aliens:  A complaint must be filed on form prescribed by the Attorney General (AG); requiring notarization or the social security number of the person filling out the complaint is prohibited. The ‘frivolous’ standard is changed to ‘false and frivolous’. The AG and county attorney may investigate allegations not submitted on the complaint form; prohibits the investigation of complaints based solely on race, color or national origin. Complaints are required be filed in the county in which the alleged unauthorized alien was employed. The county sheriff and local law enforcement agency may assist in investigating a complaint; prohibits any state, county or local officer from making an independent determination as to whether or not an individual is authorized to work in the United States.

    If, after an investigation, it is determined that the allegation is not ‘false and frivolous,’ the AG is tasked with certain enumerated requirements.
    For a first violation the court must order:
    1. The employer to terminate all unauthorized alien employees;
    2. The employer to a five year term of probation for the business location where the unauthorized alien worked;
    3. The appropriate agencies to suspend all license held by the employer for a minimum of ten days; and
    4. The employer to sign a sworn affidavit which states that the employer has terminated the employment of all unauthorized aliens and will not intentionally or knowingly employ an unauthorized alien.

    When determining whether or not an individual is an unauthorized alien the court is only permitted to consider the federal government’s determination. Licenses eligible for suspension are those specific to the site where the unauthorized alien worked. If the employer does not have a license specific to the particular location, the employer’s general license is suspended. The length of suspension of relevant licenses is determined by the court based on:

    1. The number of unauthorized aliens employed;
    2. Any prior misconduct by the employer;
    3. The degree of harm resulting from the violation;
    4. The duration of the violation,;
    5. Whether or not the employer made a good faith effort to comply with regulations; and
    6.  Any other factors the court deems appropriate.

    For a second violation licenses are permanently revoked rather than suspended.

  3.  Amending state employment law requirements
  4.  Establishes requirements of government entities when entering into contracts and of employers to receive state benefits:
    Various situations and circumstances to the law requiring the participation in the E-Verify program are added.
  5.  Clarifying confusion surrounding ‘independent contractors’ and redefining related terms:

    The terms ‘”independent contractor” and “social security number verification service” are defined. Factors for determining if an individual is an independent contractor are enumerated. In cases of independent contractor, the independent contractor is the employer, not the person that uses the contract labor. “Employee,” “employ” and “employer” are defined.

Emergency Clause: effective May 1, 2008

Statutes amended:  A.R.S. §13-2008, 13-2010, 23-211, 23-212, 23-214
Statutes created:  A.R.S. §23-212.01, 23-215, 23-216, 23-361.01, 41-1080, 41-4401

Court Impact:  The definition of ‘taking the identity of another person’ is expanded to include accepting personal identification information of another person "with the intent of obtaining or continuing employment." (A.R.S. §13-2008(A)) The definition of ‘trafficking in the identity of another person’ is expanded to include the "allowing another person to obtain or continue employment." (A.R.S. §13-2010(A))

The bill adds a class 4 felony for "knowingly accepting the identity of another person" when a person both accepts any personal identifying information knowing that the person is not the identified person and then uses the provided information for work authorization under federal law. A.R.S. §13-2008 (B)

The bill clarifies the definition of employee and excludes independent contractors from the definition. An “independent contractor” is included in the definition of employer. (A.R.S. § 13-2010(C)(4)) A separate definition of independent contractor is added by the bill. The Basic Pilot Program is changed to the E-Verify Program. The bill separates the offenses of “knowingly employing” unauthorized aliens and “intentionally employing” unauthorized aliens.

The bill adds a class 3 misdemeanor for filing a false and frivolous complaint. (A.R.S. § 23-212.01(B))

The bill requires the Attorney General’s Office to post the court orders for employer violation, a list of Arizona employers registered with the federal E-verify program and employers enrolled in the voluntary enhanced compliance program on their websites.

The bill requires an employer with two or more employees that are paid in cash to comply with state laws relating to income tax withholding, employer reporting, employment security (unemployment) and workers' compensation. Failure to comply may result in the Attorney General filing an action in superior court. If the court finds a violation, the court shall order the employer to pay a civil penalty that is equal to treble the amount of all withholdings, payments, contributions or premiums that the employer failed to remit as prescribed by subsection a of this section or five thousand dollars for each employee for whom a violation was committed, whichever is greater. (A.R.S. § 23-361.01(B)) The funds are deposited with the State Treasurer in the general fund. (A.R.S. § 23-361.01(C))

The bill also establishes requirements for government entities when entering into contracts. (A.R.S. § 41-4401)

The changes require the court to update their automation system.

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Chapter 162

SB1282

Effective Date
General

Item of interest to:
Superior Court:
Clerk of the Court
Court Administrator
Clerk
Judge
 
 
Administrative Office of the Courts

ADULT ADOPTION
Sen. Miranda

An adult is now able to adopt another adult between the ages of 18 and 21 years old if the adult being adopted consents to the adoption.

Statute amended:  A.R.S. § 14-8101

Court Impact:  Informational

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Chapter 237

HB2321

Effective Date
Delayed
1/2/2009

Item of interest to:
Superior Court:
Chief Probation Officer
Clerk of Court
Court Administrator
Judge
Clerk
Justice Court:
Court Administrator
Justice of the Peace
Clerk
Municipal Court:
Court Administrator
Judge/Magistrate
Clerk
Administrative Office of the Courts

FACTUAL INNOCENCE; JUDICIAL DETERMINATION; PROCEDURE
Rep. Driggs

A person or prosecuting agency acting on a person’s behalf may petition the superior court for a judicial determination of factual innocence and a person or party may petition the superior court for a judicial determination of factual improper party status if the person’s name was, as the result of identity theft, used by another individual who was arrested, charged or convicted of a criminal offense or entered as a record in a civil action or judgment. The petition for a judicial determination must be filed in superior court in the county in which the arrest was made, the citation was issued, the criminal charge was filed, or the civil action was filed. If a charge or civil action was filed in a justice court or municipal court, the justice of the peace or the presiding officer of the municipal court must transmit all papers, docket proceedings and orders entered into action to the clerk of the superior court in that county.

In the case of a petition for a determination of factual innocence, if no charge was filed, the petition must be served on the arresting or citing law enforcement agency. If a charge is filed:

  • The petition must be served to the prosecuting agency and, if applicable, the defense attorney
  • The prosecuting agency must provide written notice of the date, time and location of the hearing for determining factual innocence and the victim’s right to be present and heard at the hearing to all victims.

The court may conduct a hearing to determine a person’s factual innocence or factual improper party status. The burden of proof on the plaintiff is clear and convincing evidence. The victim has a right to be present if the matter involves a petition for a determination of factual innocence. The court is required to consider requests to expedite the judicial determination of factual innocence or factual improper party status.

On a determination by the court of factual innocence, the court must notify (if applicable) the person, the prosecuting agency, the law enforcement agency, and the defense attorney. The prosecuting agency is required to provide the victim with a copy of a court order within 15 days of the order being entered if the court enters a determination of factual innocence. Nothing in the statute pertaining to factual innocence can delay or affect in any other way a criminal case.

If the court finds by clear and convincing evidence that the person is not a proper party to the civil action or judgment, the court must issue a signed order finding the person a factual improper party and notify the person along with all other parties of the finding.

Proceedings to determine factual innocence or factual improper party status are in addition to other remedies available to victims of identity theft. Additionally, a person is prohibited from being required to file a petition for a judicial determination of factual innocence or factual improper party status by a creditor or another person.

Statute Impacted: A.R.S. §12-771, 12-772, 12-773, 13-4440

Court Impact: May increase the number of civil filings in Superior Court by allowing a person or prosecutor acting on their behalf to file a petition in superior court for a determination of factual innocence based on an allegation of identity theft used by another person arrested, charged, or convicted of a criminal offense or filed as a civil action or judgment. Courts may wish to create specific docket events to track the additional filings. If the charge was filed in a justice of the peace court or municipal court the justice of the peace or presiding officer of a municipal court shall transmit all papers in the case, a copy of all proceedings as shown by the docket and all orders entered in the action to the clerk of the superior court in that county.

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Chapter 244

HB2288

Effective Date
Emergency
5/27/2008

Item of interest to:
Superior Court:
Clerk of Court
Court Administrator
Judge
Clerk
Justice Court:
Court Administrator
Justice of the Peace
Clerk
Municipal Court:
Court Administrator
Judge/Magistrate
Clerk
Administrative Office of the Courts

INITIATIVE AND REFERENDUM AMENDMENTS
Rep. Stump

In pertinent part, a circulator of an initiative or referendum petition who induces any other person to sign the initiative or referendum petition by knowingly misrepresenting the general subject matter of the measure is guilty of a Class 1 misdemeanor.

Statute Amended: A.R.S. §16-918, 19-116, 19-121.01, 19-121.02, 19-121.04, 19-124

Court Impact: Renumbers the current A.R.S. § 19-116 as section § 19-116(A) and establishes § 19-116(B) as a new class 1 misdemeanor offense for obtaining a signature on a referendum or initiative by knowingly misrepresenting the general subject matter of the measure. The change requires the court to update their automation system. The contest of an initiative or referendum petition may be brought in the superior court of the county in which the person contesting resides or in the superior court in Maricopa County. The bill was precleared by the Department of Justice on 7/31/2008.

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Chapter 245

HB2378

Effective Date
General

Item of interest to:
Superior Court:
Clerk of Court
Court Administrator
Judge
Clerk
Justice Court:
Court Administrator
Justice of the Peace
Clerk
 
Administrative Office of the Courts

COUNTIES; DEBIT CARD ACCEPTANCE
Rep. DeSimone

The legislative authority of county boards of supervisors is expanded to allow for the acceptance of credit and debit cards. The individual paying via credit or debit card is required to pay for any cost incurred as a result, unless the charging entity determines that the benefits of accepting debit and credit cards exceeds the accompanying fees.

Statute Impacted: A.R.S. §11-251

Court Impact: Informational, allows the credit/debit card service fees or costs for payments to the court to be passed on to the person tendering payment if the Board of Supervisors approves.

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Chapter 281

HB2823

Effective Date
General

Item of interest to:
Superior Court:
Clerk of Court
Court Administrator
Judge
Clerk
 
 
 

PATIENT CARE; PRESUMPTIONS
Rep. Stump

Any surrogate who is not the agent or guardian of a patient is prohibited from making decisions to withdraw artificial administration of food or fluid. The court is required to enter a temporary order directing compliance with this provision on the filing of any petition to determine the validity or effect of a health care directive or decision of a surrogate. Notice of the order must be provided by personal service on the surrogate, patient, health care providers immediately responsible for the patient's care and any other persons required to be notified by the court.

Statute Amended: A.R.S. §36-3203, 36-3206, 36-3231

Court Impact: Allows the filing of a petition in superior court questioning the validity or effect of a health care directive or the decision of a surrogate to make health care decisions for an incapacitated person.

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Chapter 305

HB2485

Effective Date
General

Item of interest to:
Justice Court:
Court Administrator
Justice of the Peace
Clerk
Municipal Court:
Court Administrator
Judge/Magistrate
Clerk
Administrative Office of the Courts

UNLAWFUL PUBLIC SALE OF ANIMALS
Rep. Jim Weiers

In a county with a population greater than 800,000, the public sale of animals is unlawful if the sale takes place on any of the following:

  • A public highway, street or park or any public property adjacent to a public highway, street or park.
  • Any commercial private property without the express consent of the owner or lessee of the property.

Exceptions are made for retail sales at pet stores, sales by charitable nonprofits organizations, and any rodeo, auction market, county fair, stock show or other sanctioned livestock exhibit event. “Animal” and “pet store” are defined. Violators are subject to a civil penalty not to exceed $50.

Statute Created: A.R.S. §44-1799.71

Court Impact: Allows for a civil penalty for the public sale of animals not to exceed $50 for a violation in a county with a population greater than 800,000.

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Chapter 308

HB2813

Effective Date
General

Item of interest to:
Superior Court:
Clerk of Court
Court Administrator
Judge
Clerk
Justice Court:
Court Administrator
Justice of the Peace
Clerk
 
 

CIVIL ACTION; AFFIRMATIVE DEFENSE
Rep. Burns

The finder of fact in any civil action is required to find the defendant not liable if the defendant proves that the claimant was at least 50% responsible for the accident or event that caused the claimant’s harm.

Statute Repealed: A.R.S. §12-712

Court Impact: Requires the court to find a defendant in a civil action not liable if the accident or event was the result of a criminal act and as a result the claimant was at least 50% responsible for the accident or event that caused the claimant's harm and the defendant did not act intentionally.

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