SB1008 - 561R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 12-302, Arizona Revised Statutes, is amended to read:

START_STATUTE12-302. Extension of time for payment of fees and costs; relief from default for nonpayment; deferral or waiver of court fees and costs; definitions

A. The court or any judge may for good cause shown extend the time for paying any court fees and costs required by law or may relieve against a default caused by nonpayment of a fee within the time provided by law, but no fees paid shall be refunded.

B. The supreme court shall adopt forms and procedures for deferral or waiver of court fees and costs.

C. Except as provided in subsection E F of this section, the court shall grant an application for deferral of court fees and costs if the applicant establishes by affidavit, including supporting documentation, that the applicant either:

1. Is receiving benefits pursuant to one or more of the following programs:

(a) The temporary assistance for needy families program established by section 403 of title 4 of the social security act as it exists after August 21, 1996.

(b) The food stamp program (7 United States Code sections 2011 through 2029).

2. Is receiving benefits pursuant to the supplemental security income program (42 United States Code sections 1381 through 1385).

3. Has an income that is insufficient or barely sufficient to meet the daily essentials of life and that includes no allotment that could be budgeted for the fees and costs that are required to gain access to the court. In considering insufficient income pursuant to this paragraph subsection, the court may consider the following as evidence of insufficient income:

(a) 1. The applicant has a gross income that as computed on a monthly basis is one hundred fifty two hundred twenty-five percent or less of the current poverty level established by the United States department of health and human services. Gross monthly income includes the applicant's share of community property income.

(b) 2. The applicant's income is considered to be sufficient, but the applicant provides proof of extraordinary expenses, including medical expenses, costs of care for elderly family members or family members with disabilities or other expenses that are deemed extraordinary, that reduce the applicant's gross monthly income to at or below one hundred fifty two hundred twenty-five percent of the current poverty level established by the United States department of health and human services.

D. On receiving an application for deferral, the court shall review the application and make a determination based on the information provided whether court fees and costs should be waived. The court may waive court fees and costs entirely or in part. The court shall waive court fees and costs if the applicant establishes by affidavit or provides supporting documentation that the applicant is receiving benefits from one or more of the following:

1. The temporary assistance for needy families program established by section 403 of title IV of the social security act as it exists after august 21, 1996.

2. The supplemental nutrition assistance program (7 United States Code sections 2011 through 2036d).

3. The special supplemental nutrition program for women, infants, and children (42 United States Code section 1786).

4. The Arizona health care cost containment system.

5. The supplemental security income program (42 United States Code sections 1381 through 1383f).

D. E. On proof that the applicant is permanently unable to pay fees or costs, the court shall waive them. For the purposes of this subsection, "permanently unable to pay" means the applicant's income and liquid assets are insufficient or barely sufficient to meet the daily essentials of life and the income and liquid assets are unlikely to change in the foreseeable future.

E. F. Except in cases of dissolution of marriage, legal separation, annulment or establishment, enforcement or modification of child support, and notwithstanding subsection A of this section or chapter 9, article 4 of this title, if the applicant is an inmate who is confined to a correctional facility operated by the state department of corrections and who initiates a civil action or proceeding, the inmate is responsible for the full payment of actual court fees and costs. On filing the civil action or proceeding, the clerk of the court shall assess and, when monies exist, collect as a partial payment of any court fees and costs required by law a first time payment of twenty percent. Thereafter the state department of corrections shall withhold twenty percent of all deposits into the prisoner's spendable account administered by the department until the actual court fees and costs are collected in full. The state department of corrections shall annually forward any monies withheld to the clerk of the court of each court of jurisdiction before January 31. If a prisoner is released before the full fees and costs are collected, the state department of corrections shall forward the amount of fees and costs collected through the date of the prisoner's release. The clerk of the court of each court of jurisdiction is responsible for sending the state department of corrections a copy of the order mandating the amount of fees and costs to be paid. This subsection does not prohibit an applicant from filing a civil action or proceeding if the applicant is unable to pay the filing fees.

F. G. At the time an applicant signs and submits the application for deferral to the court, the applicant shall acknowledge under oath and sign a consent to judgment. By signing the consent to judgment, the applicant consents to judgment being entered against the applicant for all fees and costs that are deferred but that remain unpaid after thirty calendar days following the entry of final judgment or order. A consent judgment may be entered against the applicant unless one of the following applies:

1. The applicant has an established schedule of payment in effect and is current with payments.

2. A supplemental application for further deferral or waiver has been filed and is pending.

3. In response to a supplemental application, the court orders that the fees and costs be further deferred or waived.

4. Within twenty days of the date the court denies the supplemental application, the applicant either pays the fees or requests a hearing on the court's final order denying further deferral or waiver. If the applicant requests a hearing, the court shall not enter a consent judgment unless a hearing is held, further deferral or waiver is denied and payment has not been made within the time prescribed by the court.

G. H. An applicant who is granted a deferral or waiver or a party to the action who knows of any change in the financial circumstances of the applicant shall promptly notify the court of the change in the applicant's financial circumstances during the pendency of the action that affects the applicant's ability to pay court fees and costs. If within ten days after notice and a hearing the court determines that the applicant's financial circumstances have changed and that the applicant no longer meets the eligibility requirements of this section, the court shall order the applicant to pay the deferred or waived fees and costs.

H. I. The following court fees and costs may be deferred or waived, except that the county shall pay the fees and costs in paragraphs 6 and 7 of this subsection on the granting of an application for deferral or waiver and an applicant who has been granted a deferral shall reimburse the county for the fees and costs in paragraphs 6 and 7 of this subsection:

1. Filing fees.

2. Fees for issuance of issuing either a summons or subpoena.

3. Fees for obtaining one certified copy of a temporary order in a domestic relations case.

4. Fees for obtaining one certified copy of a final order, judgment or decree in all civil proceedings.

5. Sheriff, marshal, constable and law enforcement fees for service of process if any of the following applies:

(a) The applicant established by affidavit that the applicant has attempted without success to obtain voluntary acceptance of service of process.

(b) The applicant's attempt to obtain voluntary acceptance of service of process would be futile or dangerous.

(c) An order of protection or an injunction against harassment in favor of the applicant and against the party sought to be served exists and is enforceable.

6. The fee for service by publication if service is required by law and if the applicant establishes by affidavit specific facts to show that the applicant has exercised due diligence in attempting to locate the person to be served and has been unable to do so.

7. Court reporter's fees for the preparation of preparing court transcripts if the court reporter is employed by the court.

8. Appeal preparation and filing fees at all levels of appeal and photocopy fees for the preparation of preparing the record on appeal pursuant to sections 12-119.01, 12-120.31 and 12-2107 and section 12-284, subsection A.

I. J. If the case is appealed, the initial deferral or waiver remains in effect unless there is a change in the applicant's financial circumstances. If a case is appealed an applicant may be required to submit to the appellate court a new application for a deferral or waiver of the court fees and costs.

J. K. If a judgment is rendered for court fees and costs, the court fees and costs deferred but unpaid and the expenses paid by the county under this section shall be included in the judgment and shall be paid directly to the clerk of the court by the party against whom the court fees and costs were assessed.

K. L. A waiver of court fees or costs shall not be granted for:

1. Matters that are filed as class actions pursuant to rule 23 of the Arizona rules of civil procedure.

2. Civil actions other than cases of dissolution of marriage, legal separation, annulment or establishment, enforcement or modification of child support that are filed by persons who at the time of filing the application are incarcerated as a result of a felony conviction in an out-of-state correctional facility or in a jail waiting to be transported to a state department of corrections facility.

3. Civil actions other than cases of dissolution of marriage, legal separation, annulment or establishment, enforcement or modification of child support that are filed by a pro se litigant who has been previously declared a vexatious litigant by any court.

L. M. This section does not limit the court's discretion in deferring, waiving or ordering the county to pay any fees and costs as may be necessary and appropriate.

M. N. If an applicant who is granted a deferral or waiver is found to be a vexatious litigant by any court during the pendency of the action, the court shall order the applicant to pay the deferred or waived fees and costs.

N. O. For the purposes of this section:

1. "Deferral" means either postponement of an obligation to pay fees or establishment of a schedule for payment of fees.

2. "Further deferral" means the establishment of a schedule for payment of fees. END_STATUTE