PROPOSED
HOUSE OF REPRESENTATIVES AMENDMENTS TO H.B. 2477
(Reference to printed bill)
Page 1, between lines 1 and 2, insert:
"Section 1. Section 13-2314, Arizona Revised Statutes, is amended to read:
13-2314. Racketeering; civil remedies by this state; definitions
A. The attorney general
or a county attorney may file an action in superior court on behalf of a person
who sustains injury to his person, business or property by racketeering as
defined by section 13‑2301, subsection D, paragraph 4 or by a violation
of section 13‑2312 for the recovery of treble damages and the costs of
the suit, including reasonable attorney fees, or to prevent, restrain, or remedy racketeering as defined by section 13‑2301,
subsection D, paragraph 4 or a violation of section 13‑2312. If
the person against whom a racketeering claim has been asserted, including a
forfeiture action or lien, prevails on that claim, the person may be awarded
costs and reasonable attorney fees incurred in defense of that
claim. In actions filed by the state or a county, awards of costs
and reasonable attorney fees are to be assessed against and paid from monies
acquired pursuant to sections 13‑2314.01 and 13‑2314.03.
B. The superior court has jurisdiction to prevent, restrain, and remedy racketeering as defined by section 13‑2301, subsection D, paragraph 4 or a violation of section 13‑2312 after making provision for the rights of any person who sustained injury to his person, business or property by the racketeering conduct and after a hearing or trial, as appropriate, by issuing appropriate orders.
C. Prior to Before a determination of liability such the
orders may include, but are not limited to, issuing seizure warrants, entering
findings of probable cause for in personam or in rem forfeiture, entering
restraining orders or prohibitions or taking such other actions, including the
acceptance of satisfactory performance bonds, the creation of receiverships and
the enforcement of constructive trusts, in connection with any property or
other interest subject to forfeiture, damages or other remedies or restraints
pursuant to this section as the court deems proper.
D. Following a
determination of liability such the orders may include, but are not limited to:
1. Ordering any person to divest himself of any interest, direct or indirect, in any enterprise.
2. Imposing reasonable restrictions on the future activities or investments of any person, including prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect the laws of this state, to the extent the constitutions of the United States and this state permit.
3. Ordering dissolution or reorganization of any enterprise.
4. Ordering the payment of treble damages to those persons injured by racketeering as defined by section 13‑2301, subsection D, paragraph 4 or a violation of section 13‑2312.
5. Ordering the payment of all costs and expenses of the prosecution and investigation of any offense included in the definition of racketeering in section 13‑2301, subsection D, paragraph 4 or a violation of section 13‑2312, civil and criminal, including reasonable attorney fees, to be paid to the general fund of the state or the county which brings the action.
6. In personam forfeiture pursuant to chapter 39 of this title to the general fund of the state or county, as appropriate, to the extent that forfeiture is not inconsistent with protecting the rights of any person who sustained injury to his person, business or property by the racketeering conduct, of the interest of a person in:
(a) Any property or interest in property acquired or maintained by the person in violation of section 13‑2312.
(b) Any interest in,
security of, claims against or property, office, title, license or
contractual right of any kind affording a source of influence over any
enterprise or other property which that the person has acquired
or maintained an interest in or control of, conducted or participated in the
conduct of in violation of section 13‑2312.
(c) All proceeds traceable to an offense included in the definition of racketeering in section 13‑2301, subsection D, paragraph 4 and held by the person and all monies, negotiable instruments, securities and other property used or intended to be used by the person in any manner or part to facilitate commission of the offense and that the person either owned or controlled for the purpose of that use.
(d) Any other property up to the value of the subject property described in subdivision (a), (b) or (c) of this paragraph.
7. Payment to the general fund of the state or county as appropriate of an amount equal to the gain that was acquired or maintained through an offense included in the definition of racketeering in section 13‑2301, subsection D, paragraph 4 or a violation of section 13‑2312 or that any person is liable for under this section.
E. A person who is liable for conduct described in subsection D, paragraph 6, subdivision (a), (b) or (c) of this section is liable for the total value of all interests in property described in those subdivisions. The court shall enter an order of forfeiture against the person in the amount of the total value of all those interests less the value of any interests that are forfeited before or at the time of the entry of the final judgment.
F. A person or enterprise that acquires any property through an offense included in the definition of racketeering in section 13‑2301, subsection D, paragraph 4 or through a violation of section 13‑2312 is an involuntary trustee. The involuntary trustee and any other person or enterprise, except a bona fide purchaser for value who is reasonably without notice of the unlawful conduct and who is not knowingly taking part in an illegal transaction, hold the property, its proceeds and its fruits in constructive trust for the benefit of persons entitled to remedies under this section.
G. In addition to or in lieu of an action under this section the
attorney general or a county attorney may file an in rem action pursuant to
chapter 39 of this title for forfeiture, to the extent that forfeiture is not
inconsistent with protecting the rights of any person who sustained injury to
his person, business or property by the racketeering conduct, of:
1. Any property or interest in property acquired or maintained by a person in violation of section 13‑2312.
2. Any interest in,
security of, claims against or property, office, title, license or contractual
right of any kind affording a source of influence over any enterprise or other
property which that a person has acquired or maintained an
interest in or control of, conducted or participated in the conduct of in
violation of section 13‑2312.
3. All proceeds traceable to an offense included in the definition of racketeering in section 13‑2301, subsection D, paragraph 4 and all monies, negotiable instruments, securities and other property used or intended to be used in any manner or part to facilitate the commission of the offense.
H. A defendant convicted in any criminal proceeding shall be precluded from subsequently denying the essential allegations of the criminal offense of which he was convicted in any civil proceeding. For the purposes of this subsection, a conviction may result from a verdict or plea including a no contest plea.
I. Notwithstanding any law creating a lesser period, the initiation of civil proceedings related to violations of any offense included in the definition of racketeering in section 13‑2301, subsection D, paragraph 4 or a violation of section 13‑2312, including procedures pursuant to chapter 39 of this title, shall be commenced within seven years after actual discovery of the violation.
J. In any civil action brought pursuant to this section, the attorney general or a county attorney may file with the clerk of the superior court a certificate stating that the case is of special public importance. A copy of that certificate shall be furnished immediately by such clerk to the chief judge or presiding chief judge of the superior court in the county in which such action is pending, and, upon receipt of such copy, the judge shall immediately designate a judge to hear and determine the action. The judge so designated shall promptly assign such action for hearing, participate in the hearings and determination and cause the action to be expedited.
K. The standard of
proof in actions brought pursuant to this section is the preponderance of the clear and convincing evidence test.
L. A civil action authorized by this section, including proceedings pursuant to chapter 39 of this title, is remedial and not punitive and does not limit and is not limited by any other previous or subsequent civil or criminal action under this title or any other provision of law. Civil remedies provided under this title are supplemental and not mutually exclusive.
M. The attorney general may appear as amicus curiae in any proceeding in which a claim under this section has been asserted, including proceedings pursuant to chapter 39 of this title, or in which the court is interpreting this chapter or chapter 39 of this title. A party who files a notice of appeal from a civil action brought under this chapter or chapter 39 of this title shall serve the notice and one copy of the appellant's brief on the attorney general at the time the person files the appellant's brief with the court. This requirement is jurisdictional.
N. In
for the purposes of this section and section 13‑2312:
1. "Acquire" means for a person to do any of the following:
(a) Possess.
(b) Act so as to exclude other persons from using their property except on his own terms.
(c) Bring about or receive the transfer of any interest in property, whether to himself or to another person, or to secure performance of a service.
2. "Gain" means any benefit, interest or property of any kind without reduction for expenses of acquiring or maintaining it or incurred for any other reason.
3. "Proceeds" includes any interest in property of any kind acquired through or caused by an act or omission, or derived from the act or omission, directly or indirectly, and any fruits of this interest, in whatever form."
Renumber to conform
Page 3, line 18, after "seizure" insert "for forfeiture"
Line 22, after the second "the" insert "original"; after "seizure" strike remainder of line
Strike lines 23 and 24, insert "by law enforcement."
Line 25, strike "seizure" insert "property seized for forfeiture, not excluding encumbrances"
Line 26, strike "offense alleged" insert "statute"; after "seizure" insert "for forfeiture"
Strike lines 27 through 30, insert:
"7. The criminal statute charged in any criminal case that is related to the forfeiture case, if known at the time of the report.
8. The court case number of any criminal case that is related to the forfeiture case, if known at the time of the report.
9. The outcome of any criminal case that is related to the forfeiture case, if known at the time of the report."
Renumber to conform
Page 3, line 31, strike "forfeiture did not proceed under state law" insert "property was seized by a state agency and submitted for state forfeiture proceedings but was transferred to federal authorities for forfeiture proceedings"
Line 34, strike "final"
Line 36, strike "administrative" insert "uncontested pursuant to section 13‑4309"
Line 38, strike "property owner" insert "person or entity"; strike "and, if"
Strike lines 39 and 40, insert "or submitted a petition asserting an interest in the property as an owner, interest holder or injured person."
Line 41, strike "property owner was represented" insert "owner, interest holder or injured person was assisted"
Page 4, line 1, strike "to the owner," insert "or"
Line 2, after the first comma strike remainder of line insert "partial owner or injured person or if the property was forfeited to the state.
19. Whether the property was sold, destroyed or retained by law enforcement."
Renumber to conform
Line 3, after the first "the" insert "earliest"; strike "of" insert "that"; after "property" insert "was disposed of or sent for"
Line 4, strike "gross" insert "net"
Line 7, after "fees" insert ", costs, expenses and damages"; strike "to property owners, if any" insert "and to whom the fees, costs, expenses or damages were awarded"
Page 7, line 12, after "seizure" insert "for forfeiture"
Line 16, after the second "the" insert "original"; after "seizure" strike remainder of line
Strike lines 17 and 18, insert "by law enforcement."
Line 19, strike "seizure" insert "property seized for forfeiture, not excluding encumbrances"
Line 20, strike "offense alleged" insert "statute"; after "seizure" insert "for forfeiture"
Strike lines 21 through 24, insert:
"7. The criminal statute charged in any criminal case that is related to the forfeiture case, if known at the time of the report.
8. The court case number of any criminal case that is related to the forfeiture case, if known at the time of the report.
9. The outcome of any criminal case that is related to the forfeiture case, if known at the time of the report."
Renumber to conform
Page 7, line 25, strike "forfeiture did not proceed under state law" insert "property was seized by a state agency and submitted for state forfeiture proceedings but was transferred to federal authorities for forfeiture proceedings"
Line 28, strike "final"
Line 30, strike "administrative" insert "uncontested pursuant to section 13‑4309"
Line 32, strike "property owner" insert "person or entity"; strike "and, if"
Strike lines 33 and 34, insert "or submitted a petition asserting an interest in the property as an owner, interest holder or injured person."
Line 35, strike "property owner was represented" insert "owner, interest holder or injured person was assisted"
Line 39, strike "to the owner," insert "or"
Line 40, after the first comma strike remainder of line insert "partial owner or injured person or if the property was forfeited to the state.
19. Whether the property was sold, destroyed or retained by law enforcement."
Renumber to conform
Line 41, after the first "the" insert "earliest"; strike "of" insert "that"; after "property" insert "was disposed of or sent for"
Line 42, strike "gross" insert "net"
Line 45, after "fees" insert ", costs, expenses and damages"; strike "to property owners, if any" insert "and to whom the fees, costs, expenses or damages were awarded"
Amend title to conform