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									                             ARIZONA JUDICIAL COUNCIL

                                Request for Council Action




Date Action                    Type of Action                     Subject:
Requested:                     Requested:

October 22, 2008                x_ Formal Action/Request          Judicial Branch
                                  Information Only                 Legislative Proposals
                                  Other




FROM:
Jerry G. Landau
Government Affairs Director
Arizona Supreme Court



DISCUSSION:
Review Explanation & Consideration of Legislative Proposals




RECOMMENDED COUNCIL ACTION:
As to each proposal, determine whether to include in the council’s proposed legislation. If
the council does not include the proposal in the proposed legislation, determine whether t o
support the proposal.
                             AZ Judicial Council Legislative Proposals
                                 AOC Legal Services Comments


2009-01 Domestic violence; designation
No comment

2009-02 Decriminalization of petty offenses
The breadth of the change in law proposed is grossly understated in this proposal. There are over 85
references to “petty offense” in the ARS, and that doesn’t even begin to touch on municipal
ordinances. The proposal contemplates that only one statute needs to be amended to implement this
change – 13-802.D. A comprehensive consideration of all statutes creating petty offenses is needed.

A review of the effect on court rules of this fundamental change to court processes is also needed.
Civil traffic cases have a different burden of proof than petty offenses. Rule 17, Rules of Civil Traffic
Procedure, sets the standard as a preponderance of the evidence. The same rule also exempts civil
traffic cases from the rules of evidence, allowing evidence to be admitted “subject to a determination
that the evidence has some probative value.”

2009-03 Restitution; orders
Juvenile restitution orders
The change to the juvenile statute, section 8-344, appears to conflict with section 12-661. The
proposal would remove the limitation on parental liability for restitution that requires the parent be the
“custodial” parent. ARS 12-661 also requires the parent be either the custodial parent or the parent
or guardian in control of the juvenile. See, Pfaff By and Through Stalcup v. Ilstrup, 155 Ariz. 373,
746 P.2d 1303 (Ariz.App.,1987). Both statutes would need to be amended to avoid a conflict.

The proposed change to allow a victim to record the restitution order “immediately” against the assets
of the obligor conflicts with the policy in Juvenile Rule 103(B) and SCRAP-Criminal Rule 6 that
requires the clerk of the court to hold restitution payments throughout the period of any pending
appeal.

If the proposed new subsections 8-344(E)-(G) are approved to proceed some redrafting of the
language is needed for clarification.

Adult restitution orders
The proposal summary for the changes proposed to section 13-805 (the adult criminal restitution law)
states that the proposal “requires the trial court to retain jurisdiction in any case where restitution is
ordered for the purpose of modifying the manner in which restitution is paid . . . until all restitution is
paid.” However, as interpreted by the Court of Appeals, ARS 13-805 already does this:

       “[W]e conclude that the trial court retains jurisdiction to modify the manner in which
       court-ordered payments are made until such time that the amount has been paid in full,
       or until defendant's sentence expires, whichever occurs last.” State v. Pinto, 179 Ariz.
       593, 596, 880 P.2d 1139, 1142 (Ariz.App. Div. 1,1994).




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Also, 13-806, Restitution Lien, and existing subsection 13-805 (C) already permit a victim to record a
restitution order. The only new concept the proposal would add to existing Title 13 laws is in
subsection D, which provides specific mention of the victim’s entitlement to reasonable attorney’s
fees and collection costs.

2009-04 Juvenile court; IGAs; contracts; authority
In the explanation of the need for this proposed legislation several examples are cited that present
different legal authority problems and that would require statutory changes beyond the change
proposed. Yavapai County Juvenile Court has had a summer job and life skills program with Yavapai
Community College for court-involved youth that probably would be resolved. Maricopa County
Juvenile Court sought to provide a probation officer to be funded by a school district outside of an
existing statutory program and to partner with Good Will under a federal jobs training grant to have a
probation officer screen applicants for eligibility and refer eligible applicants to program partners for
case management, job training and employment opportunities. The proposed language probably
would not fully authorize these programs which involve expanded duties of probation officers and
services to persons over 18 years of age. A meeting is pending between AOC Legal Services, the
AOC Legislative Team and the AG Office staff to determine the exact nature of the objections by the
attorneys.

2009-05 Fiduciaries; power of attorney; trustee; representative payee
Legislation is necessary to accomplish the objective stated in the proposal, as the Arizona Attorney
General’s Office has advised that without a statutory change, the Supreme court and the fiduciary
Board have no jurisdiction to take action regarding certified fiduciaries who commit acts of misconduct
as a trustee, agent under a power of attorney, or as representative payee; or over previously certified
fiduciaries who serve in these capacities after their licenses have been revoked or suspended.

The proposed legislation extends regulation of only licensed fiduciaries to include services provided
under a power of attorney (POA). Therefore, it does not address generally the abuse of POAs. The
California model does address this general issue by requiring individuals serving in a POA or trustee
capacity to be licensed. The definition of “professional fiduciary” under the CA Code includes “… a
person who acts as a trustee, agent under a durable power of attorney for health care, or agent under
a durable power of attorney for finances, for more than three people or more than three families, or a
combination of people and families that totals more than three, at the same time, who are not related
to the professional fiduciary by blood, adoption, marriage or registered domestic partnership.
[statutory exceptions/exemptions follow].

2009-06 Criminal code sentencing reorganization, cleanup (Jerry Landau)
No comment
                      AZ Judicial Council Legislative Proposals


2009-01 Domestic violence; designation (Amy Love)
Replaces all statutory references to “Domestic Violence” in Arizona Revised Statutes (of
which there are approximately 233) with the designation “Domestic Victim”.

2009-02. Decriminalization of petty offenses (Jerry Landau)
Decriminalizes petty offenses, treating the offenses similar to that of civil traffic.
Currently, a petty offense is an unclassified criminal offense. A.R.S. §13-601. Persons
may be arrested on petty offenses and incarcerated for failure to appear or on violating
a court order to pay a fine. The maximum penalty is a $300 fine. Incarceration and
probation are not options.
There are approximately 65 petty offenses listed in A.R.S, predominantly in Titles 5, 15
and 28. Other petty offenses are found in various municipal codes. The proposal, by
operation would affect all municipal ordinance petty offenses.

2009-03: Restitution; orders (Katy Proctor)
Juvenile restitution orders
Requires the juvenile court to enter a juvenile restitution order in favor of each person
entitled to restitution at the time it announces an order of restitution, whether at the
disposition hearing or any subsequent restitution hearing. Current law requires this
order to be entered after the juvenile turns 18 if there is an unpaid balance on restitution
owed to a victim. Restitution would accrue interest at the statutory rate (10%) from the
date of entry of the order. The court-signed restitution order is immediately recordable
as a lien against the assets of the juvenile or the juvenile’s parents to the maximum
amount allowed by law. If a victim with a court-signed restitution order employs and
attorney or collection agency to recover restitution, the victim is entitled to collect a
reasonable fee for the attorney or collection services.
 Current law specifies that the court may require the custodial parent of a juvenile to
make restitution, the proposal removes the word “custodial” so that any parent of the
juvenile could be required to make restitution.
Adult restitution orders
Requires the trial court to retain jurisdiction in any case where restitution is ordered for
the purpose of modifying the manner in which restitution is paid to determine whether a
defendant is in compliance with probation terms and conditions or the defendant’s
sentence until all restitution is paid. The court must issue a signed order in the amount
of restitution awarded upon entry of any amount of restitution due a victim at sentencing
or any subsequent restitution hearing. Restitution accrues interest at the statutory rate
from the date the order was made and the court-signed restitution order is immediately


                                                                                          1
recordable as a lien against the assets of the defendant. If a victim with a court-signed
restitution order employs and attorney or collection agency to recover restitution, the
victim is entitled to collect a reasonable fee for the attorney or collection services.

2009-04: Juvenile court; IGAs; contracts; authority (Katy Proctor)
Allows the juvenile court to establish early prevention and intervention programs and
enter into IGAs and contracts for these programs pursuant to existing law. This change
is intended to codify the current practice of allowing juvenile courts to enter into IGAs
with other public agencies (such as schools, counties, etc.) to provide youth services.

2009-05 Fiduciaries; power of attorney; trustee; representative payee (Amy Love)
Grants oversight authority to the Supreme Court over a fiduciary serving as a trustee,
representative payee, or as an agent under a Power of Attorney (POA) regardless of
whether the fiduciary has been court appointed to the case. Prohibits a fiduciary whose
license has been suspended or revoked from serving as an agent under a POA in any
capacity unless related to the principal.
Changes the reference from a fiduciary “certification” to a fiduciary “licensure.”

2009-06. Criminal code sentencing reorganization, cleanup (Jerry Landau)
In the 2008 session the Legislature passed Chapter 301, HB 2207, and Criminal Code
Sentencing Reorganization. A review of the 165 page bill revealed the need for
technical changes in three statutes and conforming changes to one statute. These
changes are as follows:
A.R.S. §13-704, Dangerous Offenses – correct a statutory reference,
§13-708, Offenses committed while released from confinement – remove an errant
comma,
§13-3419 – Multiple drug offenses not committed on the same occasion – place the
mitigated and aggravated sentencing provisions in chart form, round to the nearest
tenth to correspond with other sentencing statutes,
§13-4515, Duration of order; notice of dismissed charge or voided order – correct a
statutory reference.

09/26/08
                                                                         Proposal 2009‐01 

                        ARIZONA JUDICIAL COUNCIL
                         Legislative Request for Proposal
                             2009 Legislative Session

                         Use the TAB key to navigate through this form.
                  Submit electronically to Tracey Gardner, TrGardner@courts.az.gov


Subject Matter of Proposal:                          Date:

Modify the designation Domestic Violence                     July 30, 2008
and use the words Domestic Victim

                                    Proposal Requested By:

Name:          Douglas S. Stanley

Title:         Presiding Judge, Yuma Municipal Court

Address:       1515 S. 2nd Avenue, Yuma, AZ 85364

Telephone:     928-373-4812

E-mail:        in care of: agraddy@courts.az.gov

SECTION I: PROPOSAL
         A.    Please summarize the proposal

               That the Domestic Violence statutes be modified to take out the designation
               DOMESTIC VIOLENCE and use the designation DOMESTIC VICTIM.

          B.   Describe in detail the issue, problem, or need for the proposal.

               Many victims do not feel that they are victims as there was “no violence”. Many
               Defendants plead not guilty because they feel that there was “no violence”. If
               there is a serious violation, then the violation is usually treated as a felony. The
               emphasis should be placed on the “victim” and it would not be as confusing or
               misleading to use the denominator “DOMESTIC VICTIM’.

          C.   Describe how the problem will be corrected or the need served       by     the
               proposal. Please provide supporting information, e.g., statistics on increased
               caseloads, reports, etc.

               Type text here


                                                                                                      1
                                                               Proposal 2009‐01 

   D.    Provide the contact information of any individuals with relevant
         expert knowledge on this subject.

         Type text here

   E.    Attach the recommended language of the legislation to this form. Please
         include the entire section of law, use UPPER CASE to designate new
         language and strikethrough to designate stricken language.              (The
         Government Affairs group will assist in final drafting as the proposal moves
         forward).

   F.    Can the desired change be achieved by another method? How?

         Type text here

            Court Rule        Administrative Order

         Type text here

   G.    If adopted by the Arizona Legislature, would the regular effective date (90
         days after adjournment of the legislative session) be acceptable, or is there a
         reason for an emergency effective date (effective immediately upon signature
         of the Governor) or a delayed effective date? If a delayed effective date is
         requested, what date is recommended?

         Type text here


SECTION II: IMPACTS
   A.    Check ALL courts that could be affected.

            Supreme          Appellate      Superior       Limited Jurisdiction

    B.   List the Arizona Revised Statute(s), Court rules or Administrative
         orders, etc. affected by the proposed legislation.

         Type text here

    C    Describe anticipated impacts of proposed legislation on the administration of
         the courts. For example: adoption or revision of court rules or procedures;
         shift of cases from one court level to another; added or revised reporting
         requirements; collection of statistics; impact on workload level, automation
         requirements, etc.

         Type text here


                                                                                      2
                                                              Proposal 2009‐01 

    D.   Describe the fiscal impact of this legislation. Will an appropriation of
         additional funds be necessary if this legislation passes? If so, for what
         purpose and how much will be required?

         Type text here

    E.   Will this legislation impact other governmental agencies? How?

         Type text here

    F.   Describe the consequences if the proposed legislation is not pursued or
         passed this year.

         Type text here

   G.    How will this legislation advance the goals of Chief Justice McGregor’s
         Strategic Agenda, Good to Great?

         Type text here


SECTION III: SUPPORT OR OPPOSITION
   A.    Please identify any agencies, groups, or legislators, etc. who support, or may
         support the proposed legislation and the reasons for the support.

         Type text here

   B.    Please identify any agencies, groups, legislators, etc. who oppose, or may
         oppose, the proposed legislation and the reasons for the opposition.

         Type text here

   C.    Do you know of any legislators who have an interest in or have
         expressed an opinion about the proposed legislation?

         Type text here

   D.    Describe any possible risks of introducing this issue to the Legislature. For
         example, does it have the potential of subjecting a program’s non-
         appropriated funds to legislative review and control, etc.?
         Type text here




                                                                                     3
Proposal  #2.    Decriminalization  of  Petty  Offenses  (Proposed  by  Hon.  John  Keegan,  Lake 
Pleasant J.P.) 

Decriminalizes petty offenses, treating these offenses similar to that of civil traffic. Currently, a 
petty offense is an unclassified criminal offense.  A.R.S. §13‐601.  Persons may be arrested on 
petty offenses and incarcerated for failure to appear or on violating a court order to pay a fine.  
The maximum penalty is a $300 fine.  Incarceration and probation are not options. 

There are approximately 65 petty offenses listed in A.R.S, predominantly in Titles 5, 15 and 28.  
Other petty offenses are found in various municipal codes. The proposal, by operation would 
affect all municipal ordinance petty offenses. 

 
                                                                           Proposal 2009‐2 

                        ARIZONA JUDICIAL COUNCIL
                         Legislative Request for Proposal
                             2009 Legislative Session

                         Use the TAB key to navigate through this form.
                  Submit electronically to Tracey Gardner, TrGardner@courts.az.gov


Subject Matter of Proposal:                          Date:

Decriminalization of petty offenses (revised)        August 14, 2008

                                    Proposal Requested By:

Name:          John C. Keegan

Title:         Justice of the Peace
               Lake Pleasant Justice Court

Address:       14264 West Tierra Buena Lane
               Surprise, Arizona 85374

Telephone:     (602) 372-1481

E-mail:        johnkeegan@mcjc.maricopa.gov


SECTION I: PROPOSAL
         A.    Please summarize the proposal

Decriminalization of petty offenses, thereby allowing a defendant pleading ‘not guilty’ to go to a
civil hearing similar to a civil traffic hearing. This would eliminate the need for pre-trial
conferences (PTCs) and the presence of a prosecutor at trial and consequently reduce costs to
affected agencies. In cases of non-compliance, it would replace arrest and incarceration with
debt collection proceedings, hence reducing costs and increasing revenue.

          B.   Describe in detail the issue, problem, or need for the proposal.

Petty offenses are heard in justice and municipal courts. The maximum penalty is a fine of $300,
plus surcharges, but they are currently treated as a criminal charge. Consequently, when a
defendant pleas ‘not guilty’ they are scheduled for a pre-trial conference and ultimately for trial.
In my court, we have actually had trials for such ‘crimes’ as fishing without a license. The PTCs
and trials consume an inordinate amount of time for court staff and the prosecutor’s office, as
well as the defendant.


                                                                                                  1
                                                                             Proposal 2009‐2 

The civil hearing process used for many traffic tickets is a much more efficient use of
government resources, a more appropriate procedure considering the nature of the offense, and
of greater service to the public.

It is difficult with existing statistics available to me to determine the exact effect this change will
have. Justice and municipal courts collectively hear approximately 92% of all court cases in
Arizona, amounting to over 2.2 million cases annually. Assuming this change affected only 10%
of these cases by decreasing processing time by at least two hours each, the resulting savings
would be over 225 man-years annually. When the study described in Section II.C below is
concluded, a better estimate of time savings should be available.

        C.     Describe how the problem will be corrected or the need served by the
               proposal. Please provide supporting information, e.g., statistics on increased
               caseloads, reports, etc.

Typical petty offenses include charges such as:
     Dog at large
     Creating a boat-wake in a ‘no wake’ zone
     Failure to pay park fee
     Expired inspection tag on a fire extinguisher
     Fishing without a license
Essentially all criminal offenses not designated as either a misdemeanor or felony are petty
offenses by default.

Civil traffic offenses such as failure to signal a lane change, or 10 mph over the speed limit on
the interstate are comparatively as minor as petty offenses. The traffic offenses, however, have a
much more expedited method of processing as shown in the following examples:

Defendant A is cited for wake in a no wake zone, essentially a speeding ticket on water. Because
this is a criminal offense, it is not possible to take responsibility and pay by mail. Defendant A
must appear in court for arraignment involving court and staff time. A pleas not guilty and is
scheduled for a PTC. At PTC, the prosecutor makes an offer to allow A to go to safe boating
school in return for a guilty plea. A refuses and the case is set for trial. Court staff, the
prosecutor’s office, the citing officer and the judge must schedule and prepare for trial. At trial
A is found guilty, is fined the presumptive amount of $145 and has a criminal record.

If A fails to appear for arraignment, a warrant is signed for his arrest. Unless bail can be posted,
he may spend up to a week in jail awaiting release if stopped and arrested, thereby incurring
costs to law enforcement and the jail.

Defendant B is cited for traveling 76 mph in a 65 mph zone. B has the option to pay the fine by
mail or attend defensive driving school. If B pleas not responsible (the ‘not guilty’ equivalent in
civil matters), his is scheduled for a civil traffic hearing. At the hearing, the citing officer is
present but no prosecutor, and a volunteer hearing officer typically hears the case. Court staff
time is reduced, and there is no demand on time for the judge or prosecutor’s office.


                                                                                                     2
                                                                             Proposal 2009‐2 

If B fails to enter a plea, a default judgment is entered without further court action and collection
proceedings are initiated.


       D.      Provide the contact information of any individuals with relevant
               expert knowledge on this subject.

John Keegan
Judge, Lake Pleasant Justice Court
14264 West Tierra Buena Lane
Surprise, Arizona 85374

Telephone:     (602) 372-1481
E-mail:        johnkeegan@mcjc.maricopa.gov


       E.      Attach the recommended language of the legislation to this form. Please
               include the entire section of law, use UPPER CASE to designate new
               language and strikethrough to designate stricken language.              (The
               Government Affairs group will assist in final drafting as the proposal moves
               forward).


13-802. Fines for misdemeanors
A. A sentence to pay a fine for a class 1 misdemeanor shall be a sentence to pay an amount, fixed
by the court, not more than two thousand five hundred dollars.
B. A sentence to pay a fine for a class 2 misdemeanor shall be a sentence to pay an amount, fixed
by the court, not more than seven hundred fifty dollars.
C. A sentence to pay a fine for a class 3 misdemeanor shall be a sentence to pay an amount, fixed
by the court, not more than five hundred dollars.
D. A sentence to pay a fine for a petty offense shall be a sentence to pay an amount, fixed by the
court, of not more than three hundred dollars. A PERSON WHO VIOLATES A PETTY
OFFENSE IS SUBJECT TO A CIVIL PENALTY UNLESS THE STATUTE DEFINING
THE OFFENSE PROVIDES FOR A CRIMINAL CLASSIFICATION.
E. A judgment that the defendant shall pay a fine, with or without the alternative of
imprisonment, shall constitute a lien in like manner as a judgment for money rendered in a civil
action.
        F. This section does not apply to an enterprise.


(Note: The new language mirrors that of ARS 28-1521, Violation; civil penalty, which allows
for civil traffic hearing for minor traffic infractions.)
        .



                                                                                                    3
                                                                        Proposal 2009‐2 

       F.      Can the desired change be achieved by another method? How?


                   Court Rule         Administrative Order

The hearing procedure could probably be authorized by court rule and/or administrative order,
however the decriminalization of the offenses could not.


       G.      If adopted by the Arizona Legislature, would the regular effective date (90
               days after adjournment of the legislative session) be acceptable, or is there a
               reason for an emergency effective date (effective immediately upon signature
               of the Governor) or a delayed effective date? If a delayed effective date is
               requested, what date is recommended?

The general effective date of legislation would be acceptable.


SECTION II: IMPACTS
       A.      Check ALL courts that could be affected.

                   Supreme          Appellate        Superior XXX Limited Jurisdiction

        B.     List the Arizona Revised Statute(s), Court rules or Administrative
               orders, etc. affected by the proposed legislation.

13-802. D

        C      Describe anticipated impacts of proposed legislation on the administration of
               the courts. For example: adoption or revision of court rules or procedures;
               shift of cases from one court level to another; added or revised reporting
               requirements; collection of statistics; impact on workload level, automation
               requirements, etc.

Minor changes to the RULES OF PROCEDURE IN CIVIL TRAFFIC AND CIVIL BOATING
VIOLATION CASES would need to be made to conform to the applicability of petty offenses,
specifically AZ ST CIV TRAF Rule 1, 2, and 3, as well as other conforming changes.

There would be no change in the designated courts.

There would be minor changes in reporting as petty offenses are now reported as criminal
misdemeanors. They could be reported the same as civil traffic offenses are now.

Because petty offenses are currently lumped with all misdemeanors, it is difficult to assess the
change in workload, but it should be significant with respect to the courts and prosecutor’s


                                                                                              4
                                                                          Proposal 2009‐2 

offices. A workload study is currently being concluded by the Maricopa County Justice Courts.
The study should show comparative differences in court processing of civil verses criminal
violations, however the study will not address the size of the workload affected due to lack of
current statistical reporting. The relief in workload in the prosecutor’s offices is also unknown
but believed to be significant when applied throughout 15 counties and over 80 municipalities.


        D.     Describe the fiscal impact of this legislation. Will an appropriation of
               additional funds be necessary if this legislation passes? If so, for what
               purpose and how much will be required?

There would be a significant decrease in costs of processing these violations in both the courts
and prosecutor’s offices. Because of the simplified process, and the ability to pay fines by mail,
it is reasonable to conclude that compliance would increase.

If a defendant did not comply with paying of the fine, normal established collection proceedings
would ensue. This would reduce the costs on law enforcement and the jails of having the
defendant arrested.


        E.     Will this legislation impact other governmental agencies? How?

For the purposes described above, there will be a reduced cost to courts, prosecutor’s offices, law
enforcement, and jails.

        F.     Describe the consequences if the proposed legislation is not pursued or
               passed this year.

Status quo ante.

       G.      How will this legislation advance the goals of Chief Justice McGregor’s
               Strategic Agenda, Good to Great?

Goal 1, Providing Access to Swift, Fair Justice states, in part, “The role of courts is to swiftly
and fairly resolve cases. To accomplish this goal, courts must become efficient and user-friendly
….”

This proposal will make the courts both more efficient and more user friendly.


SECTION III: SUPPORT OR OPPOSITION
       A.      Please identify any agencies, groups, or legislators, etc. who support, or may
               support the proposed legislation and the reasons for the support.

County and municipal prosecutor’s offices



                                                                                                 5
                                                                          Proposal 2009‐2 

       B.      Please identify any agencies, groups, legislators, etc. who oppose, or may
               oppose, the proposed legislation and the reasons for the opposition.

It is my understanding that this idea was floated several years ago but was opposed by one of the
rural counties because code compliance officers thought it downgraded their responsibility and
authority or would reduce their workload. If those concerns exist, they can addressed by
explaining:
      the penalties (fines) would remain the same;
      requirements for testimony by citing officers would remain the same, but would be in a
        civil hearing rather than a criminal trial;
      the prestige of the citing officer actually is increased because he/she would now be
        responsible for presenting the case in court rather than the prosecuting attorney (this is
        the same procedure that we use for most traffic cases and it is well accepted by police
        officers).


       C.      Do you know of any legislators who have an interest in or have
               expressed an opinion about the proposed legislation?

No, however the idea of making government more efficient will probably be attractive to law
makers in a tight budget year.


       D.      Describe any possible risks of introducing this issue to the Legislature. For
               example, does it have the potential of subjecting a program’s non-
               apropriated funds to legislative review and control, etc.?

None identified.




                                                                                                 6
2009-03: restitution; orders

Juvenile Restitution Orders
Requires the juvenile court to enter a juvenile restitution order in favor of each person
entitled to restitution at the time it announces an order of restitution, whether at the
disposition hearing or any subsequent restitution hearing. Current law requires this
order to be entered after the juvenile turns 18 if there is an unpaid balance on restitution
owed to a victim. Restitution would accrue interest at the statutory rate (10%) from the
date of entry of the order. Current law specifies that the court may require the custodial
parent of a juvenile to make restitution, the proposal removes the word “custodial” so
that any parent of the juvenile could be required to make restitution.

Adult Restitution Orders
Requires the trial court to retain jurisdiction in any case where restitution is ordered for
the purpose of modifying the manner in which restitution is paid to determine whether a
defendant is in compliance with probation terms and conditions or the defendant’s
sentence until all restitution is paid. The court must issue a signed order in the amount
of restitution awarded upon entry of any amount of restitution due a victim at sentencing
or any subsequent restitution hearing. Restitution accrues interest at the statutory rate
from the date the order was made and the court-signed restitution order is immediately
recordable as a lien against the assets of the defendant. If a victim with a court-signed
restitution order employs and attorney or collection agency to recover restitution, the
victim is entitled to collect a reasonable fee for the attorney or collection services.
                                                                          Proposal 2009‐3 

                        ARIZONA JUDICIAL COUNCIL
                         Legislative Request for Proposal
                             2009 Legislative Session

                         Use the TAB key to navigate through this form.
                  Submit electronically to Tracey Gardner, TrGardner@courts.az.gov



Subject Matter of Proposal:                          Date:

Restitution                                          September 8, 2008

                                    Proposal Requested By:

Name:          Richard Weiss

Title:         Presiding Juvenile Judge
               Mohave County Superior Court

Address:       401 Spring St.
               Kingman, Arizona 86401

Telephone:     (928) 753-0724

E-mail:        rweiss@courts.az.gov


SECTION I: PROPOSAL
         A.    Please summarize the proposal

               The purpose of these statutory changes is to provide victims of crimes or
               delinquent acts the ability to fully execute upon any restitution order and to
               collect statutory interest from the date of judgment and sentencing or disposition.

          B.   Describe in detail the issue, problem, or need for the proposal.

               The problem with existing statutes (A.R.S. §13-805 and §8-344) is that victims
               are required to accept, if any restitution payments are made, minimal monthly
               payments until after a defendants prison term or probation term expires, or in the
               case of delinquent, the expiration of a commitment or probationary period.
               Further, the amount of restitution ordered does not provide for interest to be
               assessed upon the sum certain due. This places victims in an inferior position
               compared to civil litigants. In all other proceedings in which a sum certain is


                                                                                                    1
                                                                  Proposal 2009‐3 

     ordered the judgment creditor is entitled, from the date of judgment, to fully
     enforce his judgment and to collect either an agreed interest rate or a statutory
     interest rate. This calls into question whether the Victim’s Bill of Rights is being
     implemented, as they are treated with less due process than other arguably less
     favored classes. One must assume that affording victims constitutional
     protections (Art. II §2.1 of the Arizona Constitution) provides at least the same
     due process rights of other court users. Victims, however, are, inter alia, entitled
     to prompt restitution. Arguably allowing defendants or delinquents to make
     minimum monthly payments, without fear of levy, is not prompt restitution.

     Of note is this proposal would not alter a probationer’s ability to comply with his
     or her terms of probation by making the minimum court ordered payments.
     Rather this proposal provides all victims for whom restitution was ordered to
     execute upon any non-exempt assets of a defendant, delinquent or delinquent
     parent and to be entitled to statutory interest from the date restitution is ordered.
     It does not create any burden on the court, other than notice to victims regarding
     collection remedies. The proposal anticipates victims, either pro per or through
     counsel, to initiate any collection remedy. Should counsel be employed, the
     statute should allow for the collection of attorneys fees in addition to any amount
     due a victim. In the event of an appeal, the courts may stay collection remedies,
     with or without surety.

C.   Describe how the problem will be corrected or the need served by the
     proposal. Please provide supporting information, e.g., statistics on increased
     caseloads, reports, etc.

     This proposal corrects the anomaly between judgment creditors and victim
     judgment creditors. It would elevate victims to the same status of civil judgment
     creditors. Further, this proposal attempts to provide substance to constitutionally
     protected interests of victims.

D.   Provide the contact information of any individuals with relevant
     expert knowledge on this subject.

     RWeiss
     COVIC

E.   Attach the recommended language of the legislation to this form. Please
     include the entire section of law, use UPPER CASE to designate new
     language and strikethrough to designate stricken language.              (The
     Government Affairs group will assist in final drafting as the proposal moves
     forward).

     See Attached




                                                                                             2
                                                                    Proposal 2009‐3 

   F.    Can the desired change be achieved by another method? How?

         No

              Court Rule        Administrative Order

         Type text here

   G.    If adopted by the Arizona Legislature, would the regular effective date (90
         days after adjournment of the legislative session) be acceptable, or is there a
         reason for an emergency effective date (effective immediately upon signature
         of the Governor) or a delayed effective date? If a delayed effective date is
         requested, what date is recommended?

         Preferably this should be effective upon the signature of the governor.


SECTION II: IMPACTS
   A.    Check ALL courts that could be affected.

         X Supreme         X Appellate X Superior X Limited Jurisdiction

    B.   List the Arizona Revised Statute(s), Court rules or Administrative
         orders, etc. affected by the proposed legislation.

         13-805
         8-344

    C    Describe anticipated impacts of proposed legislation on the administration of
         the courts. For example: adoption or revision of court rules or procedures;
         shift of cases from one court level to another; added or revised reporting
         requirements; collection of statistics; impact on workload level, automation
         requirements, etc.

         It may be anticipated that the workload upon the courts would remain the same or
         be diminished. A form of judgment for a restitution order would issue at the
         pronouncement of the restitution order. Consequently, the present practice of
         continuing accounting functions, would not be necessary prior to the imposition
         of any criminal restitution order. Courts would continue to account, including
         adding accruing interest, but the burden would shift to the judgment debtor
         (defendant or delinquent) to prove payment and to release any recordable lien.

    D.   Describe the fiscal impact of this legislation. Will an appropriation of
         additional funds be necessary if this legislation passes? If so, for what
         purpose and how much will be required?
         It is not anticipated any appropriation is needed.


                                                                                        3
                                                                      Proposal 2009‐3 

    E.   Will this legislation impact other governmental agencies? How?

         Circumstantially, it may affect government agencies which are subject to
         recognizing recordable judgments. But this proposal only affects the timing of
         the lien establishment in a criminal or delinquent case.

    F.   Describe the consequences if the proposed legislation is not pursued or
         passed this year.

         Victims will continue to be treated with less fairness, respect and dignity than all
         other judgment creditors.

   G.    How will this legislation advance the goals of Chief Justice McGregor’s
         Strategic Agenda, Good to Great?

         1)   Provide access to swift and fair justice.
         2)   Advance victims’ rights (Strategic Goal 1-D).
         3)   Make the court system more accountable for victim’s rights.
         4)   Further provide protection to families and the community.


SECTION III: SUPPORT OR OPPOSITION
   A.    Please identify any agencies, groups, or legislators, etc. who support, or may
         support the proposed legislation and the reasons for the support.

         COVIC
         Victim Groups
         Governor’s Office for Victims

   B.    Please identify any agencies, groups, legislators, etc. who oppose, or may
         oppose, the proposed legislation and the reasons for the opposition.

         Unknown

   C.    Do you know of any legislators who have an interest in or have
         expressed an opinion about the proposed legislation?

         Unknown

   D.    Describe any possible risks of introducing this issue to the Legislature. For
         example, does it have the potential of subjecting a program’s non-
         apropriated funds to legislative review and control, etc.?

         Unknown



                                                                                                4
                                                                     Proposal 2009‐3 

       §8-344. Restitution payments

        A. If a juvenile is adjudicated delinquent, the court, after considering the nature
of the offense and the age, physical and mental condition and earning capacity of the
juvenile, shall order the juvenile to make full or partial restitution to the victim of the
offense for which the juvenile was adjudicated delinquent or to the estate of the victim if
the victim has died. The juvenile shall make restitution payments to the clerk of the court
for disbursement to the victim or estate of the victim.

        B. The court shall notify the victim or estate of the victim of the dispositional
hearing. The court may consider a verified statement from the victim or estate of the
victim concerning damages for lost wages, reasonable damages for injury to or loss of
property and actual expenses of medical treatment for personal injury, excluding pain and
suffering.

         C. In ordering restitution pursuant to subsection A of this section, the court may
order one or both of the juvenile’s custodial parents to make restitution to the victim of
the offense for which the juvenile was adjudicated delinquent or to the estate of the
victim if the victim has died. The court shall determine the amount of restitution ordered
pursuant to this subsection, except that the amount shall not exceed the liability limit
established pursuant to §12-661. The court may order a parent or juvenile who is ordered
to pay restitution to satisfy the order in a lump sum or installment payments to the clerk
of the court for disbursement to the victim or estate of the victim. If the court orders the
juvenile’s parents to make restitution pursuant to this subsection, the court shall order the
juvenile to make either full or partial restitution, regardless of the juvenile’s insufficient
earning capacity. The court shall not consider the ability of the juvenile’s parents to pay
restitution before making a restitution order.

        D. The juvenile court shall retain jurisdiction of the case after the juvenile attains
eighteen years of age for the purpose of modifying the manner in which court ordered
payments are to be made. After a juvenile attains eighteen years of age, the juvenile
court shall enter the following:

        1. A juvenile restitution order in favor of the state for the unpaid balance, if any,
of any costs, fees, surcharges or monetary assessments imposed.

       2. A juvenile restitution order in favor of each person entitled to restitution for
the unpaid balance of any restitution ordered pursuant to this section.

     E. THE JUVENILE COURT SHALL AT THE TIME IT ANNOUNCES A
RESTITUTION ORDER, INCLUDING ANY PARTIAL AWARD, IN FAVOR OF
ANY VICTIM WHETHER AT THE DISPOSITION HEARING OR A SUBSEQUENT
RESTITUTION HEARING, SHALL ENTER A JUVENILE RESTITUTION ORDER
IN FAVOR OF EACH PERSON ENTITLED TO RESTITUTION. SUCH JUVENILE
RESTITUTION SHALL ACCRUE INTEREST FROM THE DATE OF ENTRY OF
THE ORDER AT THE STATUTORY RATE. IN ADDITION, THE COURT SIGNED


                                                                                            5
                                                                    Proposal 2009‐3 

JUVENILE RESTITUTION ORDER SHALL BE IMMEDIATELY RECORDABLE
AGAINST THE ASSETS OF THE JUVENILE, IF ANY, AND AGAINST THE
JUVENILE’S PARENTS TO THE MAXIMUM AMOUNT ALLOWED BY LAW.

      F. IN THE EVENT A VICTIM HOLDING A COURT SIGNED JUVENILE
RESTITUTION ORDER EMPLOYS AN ATTORNEY OR COLLECTION AGENCY
TO RECOVER AN AMOUNT OF RESTITUTION, THE VICTIM SHALL BE
ENTITLED TO COLLECT A REASONABLE ATTORNEY’S FEE OR COLLECTION
FEE IN ADDITION TO THE AMOUNT OF RESTITUTION OWED THE VICTIM.

      G. AFTER A JUVENILE ATTAINS EIGHTEEN YEARS OF AGE THE
JUVENILE COURT SHALL ENTER A JUVENILE RESTITUTION ORDER IN
FAVOR OF THE STATE FOR THE UNPAID BALANCE, IF ANY, OF ANY COSTS,
FEES, SURCHARGES OR MONETARY ASSESSMENTS IMPOSED.

       E.
       H. The clerk of the court shall send a copy of the juvenile restitution order to
each person who is entitled to restitution.

      F.
      I. A juvenile restitution order may be recorded and enforced as any civil
judgment, except that a juvenile restitution order does not require renewal, pursuant to
§12-1611 or §13-1612. A juvenile restitution order does not expire until paid in full.

      G.
      J. A juvenile restitution order is a criminal penalty for purposes of a federal
bankruptcy involving the juvenile.

       §13-805. Jurisdiction

       A. The trial court shall retain jurisdiction of the case for purposes of modifying
the manner in which court-ordered payments are made until paid in full or until the
defendant’s sentence expires. At the time the defendant completes the defendant’s period
of probation or the defendant’s sentence, the court shall enter both:

        1. A criminal restitution order in favor of the state for the unpaid balance, if any,
of any fines, costs, incarceration costs, fees, surcharges or assessments imposed.

       2. A criminal restitution order in favor of each person entitled to restitution for
the unpaid balance of any restitution ordered.

     B. THE TRIAL COURT SHALL RETAIN JURISDICTION IN EACH CASE IN
WHICH RESTITUTION IS ORDERED FOR THE PURPOSES OF MODIFYING THE
MANNER IN WHICH RESTITUTION IS PAID TO DETERMINE WHETHER A
DEFENDANT IS IN COMPLIANCE WITH THE DEFENDANT’S TERMS AND




                                                                                           6
                                                                   Proposal 2009‐3 

CONDITIONS OF PROBATION OR THE DEFENDANT’S SENTENCE UNTIL ALL
RESTITUTION IS PAID.

     C. UPON ENTRY OF ANY AMOUNT OF RESTITUTION DUE A VICTIM,
WHETHER PARTIAL OR TOTAL, AT JUDGMENT AND SENTENCING OR AT
ANY SUBSEQUENT RESTITUTION HEARING, THE COURT SHALL ISSUE A
SIGNED ORDER IN THE AMOUNT OF RESTITUTION AWARDED. SAID
RESTITUTION ORDER SHALL BEAR INTEREST AT THE STATUTORY RATE
FROM THE DATE RESTITUTION ORDER WAS MADE. IN ADDITION, THE
COURT SIGNED RESTITUTION ORDER SHALL BE IMMEDIATELY
RECORDABLE AS A LIEN AGAINST THE ASSETS OF THE DEFENDANT.

     D.   IN THE EVENT A VICTIM HOLDING A COURT SIGNED
RESTITUTION ORDER EMPLOYS AN ATTORNEY OR COLLECTION AGENCY
TO RECOVER AN AMOUNT OF RESTITUTION THE VICTIM SHALL BE
ENTITLED TO COLLECT A REASONABLE ATTORNEY’S FEE OR COLLECTION
FEE.

     E. AT THE TIME THE DEFENDANT COMPLETES THE DEFENDANT’S
PERIOD OF PROBATION OR THE DEFENDANT’S SENTENCE, THE COURT
SHALL ENTER A CRIMINAL RESTITUTION ORDER IN FAVOR OF THE STATE
FOR THE UNPAID BALANCE, IF ANY, OF ANY FINES, COSTS,
INCARCERATION COSTS, FEES, SURCHARGES OR ASSESSMENTS IMPOSED.

        B.
        F. The clerk of the court shall notify each person who is entitled to restitution of
the criminal restitution order.


        C.
        G. A criminal restitution order may be recorded or enforced as any civil
judgment, except that a criminal restitution order does not require renewal pursuant to
§12-1611 or 12-1612. Enforcement of a criminal restitution order by any person who is
entitled to restitution or by the state includes the collection of interest that accrues
pursuant to §44-1201 in the same manner as any civil judgment. A criminal restitution
order does not expire until paid in full.

      D.
      H. A criminal restitution order is criminal penalty for the purposes of a federal
bankruptcy involving the defendant.




                                                                                          7
2009-04: Juvenile court; IGAs; contracts; authority


**As Submitted**


Allows the juvenile court to establish early prevention and intervention programs and
enter into IGAs and contracts for these programs pursuant to existing law. This change
is intended to codify the current practice of allowing juvenile courts to enter into IGAs
with other public agencies (such as schools, counties, etc.) to provide youth services.
                                                                         Proposal 2009‐4 

                        ARIZONA JUDICIAL COUNCIL
                         Legislative Request for Proposal
                             2009 Legislative Session

                         Use the TAB key to navigate through this form.
                  Submit electronically to Tracey Gardner, TrGardner@courts.az.gov



Subject Matter of Proposal:                         Date:

Juvenile Court IGA authority                        8/15/2008

                                   Proposal Requested By:

Name:          Robin Lubitz, as requested by several Juvenile Court Directors

Title:         Director, Juvenile Justice Services Division

Address:       Arizona Supreme Court, AOC, 1501 W. Washington, Phoenix AZ 85007

Telephone:     602-452-3450

E-mail:        Rlubitz@courts.az.gov


SECTION I: PROPOSAL
         A.    Please summarize the proposal

               This proposal would clarify that Juvenile Courts have statutory authority to
               establish juvenile prevention and early intervention programs designed to prevent
               or reduce juvenile crime and delinquency and to enter into Intergovernmental
               Agreements and contracts for this purpose consistent with statute.

          B.   Describe in detail the issue, problem, or need for the proposal.

               Historically, many Juvenile Courts have entered into IGA’s with various public
               agencies (schools, county government, etc.) for purposes of providing services to
               youth. Recently, the Attorney General’s Office has refused to sign some of these
               IGA’s arguing that the Juvenile Court lacks specific statutory authority to engage
               in early intervention and prevention programs.




                                                                                               1
                                                                 Proposal 2009‐4 

C.   Describe how the problem will be corrected or the need served by the
     proposal. Please provide supporting information, e.g., statistics on increased
     caseloads, reports, etc.

      The problem will be correcting by adding a new A.R.S section, 8-209, that
      clearly indicates that the juvenile court may establish juvenile early intervention
      and prevention programs and may enter into intergovernmental contracts and
      agreements for such programs consistent with A.R.S. 11-952 (relating to
      Intergovernmental Agreements and contracts.

D.   Provide the contact information of any individuals with relevant
     expert knowledge on this subject.

     David Withey, Chief Counsel, AOC
     Nina Preston, Assistant Counsel, AOC
     Carol Boone, Chief Juvenile Probation Officer, Maricopa County;
     Scott Mabery, Juvenile Court Director, Yavapai County

E.   Attach the recommended language of the legislation to this form. Please
     include the entire section of law, use UPPER CASE to designate new
     language and strikethrough to designate stricken language.              (The
     Government Affairs group will assist in final drafting as the proposal moves
     forward).

     Arizona Revised Statutes:

     Title 8: Children, Chapter 2: Juvenile Court, Article 1: General Provisions:
     Add New Section:
     A.R.S. 8-209. Juvenile prevention and intervention programs

     The juvenile court may establish juvenile early prevention and intervention
     programs designed to reduce juvenile crime and juvenile delinquency and may
     enter into intergovernmental agreements and contracts for such programs pursuant
     to section 11-952.

F.   Can the desired change be achieved by another method? How?

     No, according to the AG’s office specific legislative authority is required.

          Court Rule         Administrative Order

G.   If adopted by the Arizona Legislature, would the regular effective date (90
     days after adjournment of the legislative session) be acceptable, or is there a
     reason for an emergency effective date (effective immediately upon signature
     of the Governor) or a delayed effective date? If a delayed effective date is
     requested, what date is recommended?


                                                                                       2
                                                                 Proposal 2009‐4 

         Regular effective date would be acceptable.

SECTION II: IMPACTS
   A.    Check ALL courts that could be affected.

             Supreme         Appellate xx Superior         Limited Jurisdiction

    B.   List the Arizona Revised Statute(s), Court rules or Administrative
         orders, etc. affected by the proposed legislation.

         A.R.S. 8-209 (new statute)

    C    Describe anticipated impacts of proposed legislation on the administration of
         the courts. For example: adoption or revision of court rules or procedures;
         shift of cases from one court level to another; added or revised reporting
         requirements; collection of statistics; impact on workload level, automation
         requirements, etc.

         The proposed legislation will enable Juvenile Court to return to his previous
         practice of entering into agreements with public agencies for the provision of
         prevention programs designed to serve at risk juveniles. Examples of such
         programs include: JPO assigned to local school to provide services modeled
         after the State Safe Schools Program; JPO assigned to provide referrals to
         Department of Labor Grant program that provides job skills training and support
         services to justice involved youth; therapeutic gardening project for detained
         youth.

    D.   Describe the fiscal impact of this legislation. Will an appropriation of
         additional funds be necessary if this legislation passes? If so, for what
         purpose and how much will be required?

         There is no negative fiscal impact. The legislative change would enable many
         juvenile courts to better leverage their treatment funds by tapping into the
         resources and expertise of other public agencies.

    E.   Will this legislation impact other governmental agencies? How?

         Only to the extent that they will be able to enter into IGA’s with the Juvenile
         Court providing all other statutory requirements are met. It would also impact
         the AG’s willingness to approve and sign IGA’s related to early intervention and
         intervention programs.

    F.   Describe the consequences if the proposed legislation is not pursued or
         passed this year.



                                                                                       3
                                                                   Proposal 2009‐4 

        The Juvenile Courts will not be able to enter into IGA’s which has historically
        provided an efficient vehicle for leveraging resources and providing services for
        youth designed to prevent juvenile crime and delinquency.

   G.   How will this legislation advance the goals of Chief Justice McGregor’s
        Strategic Agenda, Good to Great?

        The proposal will advance Goal No. 2 of the Strategic Agenda related to
        “Protecting Our Children, Families and Our Community”. Specifically the
        proposal “improve processes to protect children, families, and communities
        through innovative and forward-looking programs”.

SECTION III: SUPPORT OR OPPOSITION
   A.   Please identify any agencies, groups, or legislators, etc. who support, or may
        support the proposed legislation and the reasons for the support.

        Juvenile Court Directors support this legislation as it provides specific authority
        for an historical practice and will enable Juvenile Court to more efficiently and
        effectively provide services to youth.

   B.   Please identify any agencies, groups, legislators, etc. who oppose, or may
        oppose, the proposed legislation and the reasons for the opposition.

        No significant opposition is anticipated. However, it is recommended that this
        legislation be reviewed by the Attorney General’s Office to ensure that it will
        provide sufficient specificity to provide statutory authority for juvenile courts to
        enter into intergovernmental agreements and contracts for early intervention and
        prevention programs.

        It is conceivable that some individuals may argue that the role of juvenile
        probation should be limited to court-involved juveniles and not extend to juveniles
        who are at risk of juvenile crime and delinquency but have not yet entered the
        juvenile justice system.

   C.   Do you know of any legislators who have an interest in or have
        expressed an opinion about the proposed legislation?

        No

   D.   Describe any possible risks of introducing this issue to the Legislature. For
        example, does it have the potential of subjecting a program’s non-
        apropriated funds to legislative review and control, etc.?

        None anticipated, although there is always some level of risk for other changes
        anytime a statutory section is opened up for review in the Legislature.


                                                                                          4
Proposal # 5. Fiduciaries; Power of Attorney; Trustee; Representative Payee
(Proposed by Nancy Swetnam on behalf of the Regulatory Scope Subcommittee
of the Fiduciary Board)

Grants oversight authority to the Supreme Court over fiduciaries serving as a trustee,
representative payee, or as an agent under a Power of Attorney (POA) regardless of
whether the fiduciary has been court appointed to the case. Prohibits a fiduciary whose
license has been suspended or revoked from serving as an agent under a POA in any
capacity unless related to the principal.
Changes reference to “certification” to “licensure.”
                                                                            Proposal 2009‐5 

                         ARIZONA JUDICIAL COUNCIL
                          Legislative Request for Proposal
                              2009 Legislative Session


Subject Matter of Proposal:                                                  Date:

Fiduciaries; Power of Attorney; Trustee; Representative Payee                August 22, 2008

                                      Proposal Requested By:

Name:           Regulatory Scope Subcommittee of the Fiduciary Board
Title:          n/a
Address:        Arizona Supreme Court
                Certification and Licensing Division
                1501 West Washington
                Phoenix, AZ 85007
Telephone:      602-452-3378
E-mail:         pfp@courts.az.gov


                               SECTION I: PROPOSAL
   A. Please summarize the proposal.

         The proposed statutory changes grant oversight authority to the Supreme Court over
         fiduciaries who are serving as a trustee, representative payee, or as an agent under a
         Power of Attorney (POA) regardless of whether the fiduciary has been court appointed to
         the case. The proposal also changes reference to “certification” to “licensure,” in
         conformity with national standards.

   B. Describe in detail the issue, problem, or need for the proposal.

         Highly publicized and unfortunate cases of mismanagement and financial exploitation of
         incapacitated and vulnerable persons by a prominent Maricopa County fiduciary and his
         attorney in the 1990’s led the Arizona Judicial Council to suggest, and the Arizona State
         Legislature to adopt, legislation to require the certification and oversight of fiduciaries.
         Arizona Revised Statutes § 14-5651 states the Superior Court shall not appoint a
         fiduciary unless the individual is certified by the Supreme Court. A.R.S. § 14-5651
         defines a “fiduciary” as: (1) an individual who is appointed by the court as a guardian or
         conservator for a person unrelated to the fiduciary and who charges a fee for this service,
         or (2) a person appointed by the court as a personal representative who is not related to
         the decedent, receives a fee and is not nominated in a will or by a power conferred in a
         will and is not a devisee in the will.


                                                                                                   1
                                                                   Proposal 2009‐5 

The certification of fiduciaries began in early 1999. There are currently 299 certified
fiduciaries: individuals and business, the Office of the Public Fiduciary in each county
and the Arizona Department of Veterans Affairs. Pursuant to A.R.S. § 14-5651, banks
and trust companies and their employees are not required to hold certification.

Although the vast majority of certified fiduciaries do their jobs competently and ethically,
unfortunately some abuse their position of trust and authority. Since implementation of
the certification requirement, there have been 6 fiduciaries who have been convicted of
abusing wards through fraud, theft or financial exploitation. These cases have resulted in
revocation of the fiduciary’s certification and felony convictions with sentences ranging
from probation to lengthy (e.g. 7 year) prison terms. These criminal convictions have
involved both public fiduciaries (employees of the Public Fiduciary Office or Arizona
Department of Veterans’ Affairs) and private fiduciaries (employees of private fiduciary
businesses) and have occurred across the state.

The statutory definition of “fiduciary” limits the regulatory oversight only to those cases
where a fiduciary is court appointed to serve as a guardian, conservator or personal
representative. When a fiduciary is acting as a trustee, agent under a power of attorney,
or as representative payee, the Supreme Court has no authority to investigate and take
disciplinary action if the fiduciary abuses the ward. The Attorney General’s Office has
advised the Fiduciary Board does not have jurisdiction over complaints in these cases.

Because A.R.S. § 14-5651 prohibits certification of an individual with a felony
conviction, the 6 prior fiduciaries who were convicted for their crimes against their wards
are not eligible for recertification as a fiduciary and hence cannot be court appointed to
serve as a conservator, guardian or personal representative upon their release from prison
or release off criminal probation. However, there are no statutory prohibitions against
these individuals serving as trustee, agent under a POA or as representative payee and
from collecting fees from their clients. There is no oversight in these situations and
therefore, the potential for the trustee/agent/representative payee to commit financial
exploitation is high.

Pursuant to A.R.S. § 14-5651 and the Arizona Code of Judicial Administration (ACJA) §
7-202: Fiduciaries, Chief Justice McGregor established and appointed members to the
Fiduciary Board, effective January 1, 2007. The Board has the responsibility for making
all final decisions on applications for certification, on complaints alleging misconduct by
certified fiduciaries and for making recommendations to the Supreme Court on policy
issues involving fiduciaries.     Prior to the inception of the Board, the Administrative
Director of the Courts made all final decisions on complaints. Complaints received
regarding individuals serving as an agent under a POA include the following concerns:

   Fiduciary has individuals execute a POA, naming the fiduciary as agent based on the
    fiduciary’s independent assessment each individual is competent to enter into a POA.
    Letters from physicians in the files provide medical documentation for the need for
    guardianship of these individuals.


                                                                                          2
                                                                        Proposal 2009‐5 

      After a client passes away, the fiduciary utilizes an executed POA to access the
       client’s bank account and pay fees to herself for services under the POA.

      A male fiduciary serving as POA agent for an elderly female client takes vacations
       with the client, sharing accommodations and bathing and dressing the client. The
       fiduciary writes numerous checks from the client’s bank account to himself and his
       family members.
   Despite the concerns expressed in these complaints, the Administrative Director and the
   Fiduciary Board have been forced to dismiss these complaints for lack of jurisdiction.
   Members of the public who have lodged these complaints have expressed concern that no
   action has been taken to address these situations where they believe significant harm has
   been done to vulnerable individuals.

   The State of California recently adopted legislation requiring the licensing of fiduciaries;
   this legislation requires licensing of individuals who serve as an agent under a POA or as
   a trustee for three or more people or families if the individual is not related to the clients.
   (Refer to the Attachment for this legislation.)

   It is also proposed that reference to “certification” of fiduciaries in statute and the
   Arizona Code of Judicial Administration be changed to the correct term of “license.”
   National standards as adopted by the Council on Licensure, Enforcement and Regulation
   (“CLEAR”) regarding the regulation of professionals suggest that the term, “licensure”
   and not “certification” is the appropriate designation for fiduciaries.     Certification
   generally refers to additional training and credentials an individual may seek in their
   chosen profession; in contrast, licensing refers to those situations where an individual
   must demonstrate competency and obtain a license before they can practice in their
   chosen profession. Because A.R.S. § 14-5651 and ACJA § 7-202 requires individuals to
   demonstrate competency as a fiduciary and provides that the ability of an individual to
   serve as a fiduciary can be denied, restricted or revoked, use of the term “licensure” is
   suggested as the appropriate designation.

C. Describe how the problem will be corrected or the need served by the proposal.
   Please provide supporting information, e.g., statistics on increased caseloads,
   reports, etc.

   The proposed changes to the statutes and the ACJA § 7-202 will provide authority to take
   action if certified fiduciaries commit abuses when serving as a trustee, agent under a
   POA or as representative payee.

D. Provide the contact information of any individuals with relevant expert knowledge
   on this subject.

   Judge Dean Fink
   Superior Court in Maricopa County
   Central Court Building
   201 West Jefferson, 12C


                                                                                                3
                                                                      Proposal 2009‐5 

   Phoenix, AZ 85003
   602-506-3776
   finkd@superiorcourt.maricopa.gov

   (Judge Fink is the Chair of the Regulatory Scope Subcommittee and a member of the
   Fiduciary Board)

   Nancy Swetnam
   Director, Certification and Licensing Division
   Arizona Supreme Court
   1501 West Washington, Suite 104
   Phoenix, AZ 85007
   602-452-3362
   nswetnam@courts.az.gov

E. Attach the recommended language of the legislation to this form. Please include the
   entire section of law, use UPPER CASE to designate new language and
   strikethrough to designate stricken language. (The Government Affairs group will
   assist in final drafting as the proposal moves forward).

   See attachment, paragraph A.

F. Can the desired change be achieved by another method? How?

   No. The Arizona Attorney General’s Office has advised that without a statutory change,
   the Supreme Court and the Fiduciary Board have no jurisdiction over certified fiduciaries
   who commit acts of misconduct as a trustee, agent under a power of attorney, or as
   representative payee; or over previously certified fiduciaries who serve in these capacities
   after their licenses have been revoked or suspended.

       Court Rule         Administrative Order

G. If adopted by the Arizona Legislature, would the regular effective date (90 days
   after adjournment of the legislative session) be acceptable, or is there a reason for
   an emergency effective date (effective immediately upon signature of the Governor)
   or a delayed effective date? If a delayed effective date is requested, what date is
   recommended?

   A delayed effective date of January 1, 2010 would be preferable to allow adequate time
   to make the necessary corresponding changes to the ACJA § 7-202: Fiduciaries.




                                                                                             4
                                                                     Proposal 2009‐5 

                         SECTION II: IMPACTS
A. Check ALL courts that could be affected.

       Supreme         Appellate        Superior        Limited Jurisdiction

B. List the Arizona Revised Statute(s), Court Rules or Administrative Orders, etc.
   affected by the proposed legislation.

   A.R.S. §§ 14-5651, 14-5501, 36-3221, 36-3223 and Arizona Code of Judicial
   Administration § 7-202: Fiduciaries.

C. Describe anticipated impacts of the proposed legislation on the administration of the
   courts. For example: adoption or revision of court rules or procedures; shift of
   cases from one court level to another; added or revised reporting requirements;
   collection of statistics; impact on workload level, automation requirements, etc.

   The primary impact will be on the Administrative Office of the Courts in the
   administration of the Fiduciary Program and specifically, in the processing of complaints
   alleging misconduct by fiduciaries when serving in any fiduciary role. Conforming
   changes to the ACJA § 7-202: Fiduciaries will also be necessary.

   The proposed legislation would not shift cases. Superior court judges would continue to
   appoint fiduciaries to serve as a conservator, guardian or personal representative for
   incapacitated or vulnerable individuals and would continue to have oversight
   responsibility for those cases.

D. Describe the fiscal impact of this legislation. Will an appropriation of additional
   funds be necessary if this legislation passes? If so, for what purpose and how much
   will be required?

   No significant impact on the Fiduciary Fund or expenses is anticipated.

E. Will this legislation impact other governmental agencies? How?

   The only potential impact to other governmental agencies is to the Public Fiduciary
   Office and the Arizona Department of Veterans’ Affairs, if a member of their staff
   commits misconduct when serving as a trustee, agent under a power of attorney or as
   representative payee and disciplinary action is taken against the fiduciary. This could
   have both financial and staffing impact on the other governmental units.

F. Describe the consequences if the proposed legislation is not pursued or passed this
   year.

   The Fiduciary Board will be forced to continue to dismiss complaints alleging
   misconduct by certified fiduciaries when serving as an agent under a power of attorney,


                                                                                          5
                                                                       Proposal 2009‐5 

   as trustee or as personal representative and previously certified fiduciaries whose
   certification was revoked will be able to continue to serve as a trustee, agent or
   representative payee. In these cases, the potential for harm to vulnerable and
   incapacitated individuals is high.

G. How will this legislation advance the goals of Chief Justice McGregor’s Strategic
   Agenda, Good to Great?

   Goal 2 - C: Vulnerable Persons is one of the initiatives under Goal 2: Protecting Children,
   Families and Communities. This initiative states: “As the population of our state
   continues to increase and age, courts often are called upon to appoint fiduciaries, licensed
   by the court, to aid those who need assistance in managing their personal and financial
   affairs due to age or other infirmity. Courts must ensure, through effective oversight,
   policies, and training that fiduciaries act in the best interests of those they serve and are
   held accountable for performing their duties properly.” Addressing the issue of misuse
   of powers of attorney is an identified project under Goal 2-C.

           SECTION III: SUPPORT OR OPPOSITION
A. Please identify any agencies, groups, or legislators, etc. who support, or may support
   the proposed legislation and the reasons for the support.

   The Office of the Attorney General and Adult Protective Services have been involved in
   investigating the cases of abuse and could provide further documentation of the need for
   services. The American Association for Retired Persons and the Area Agency on Aging
   are other potential supporters.

B. Please identify any agencies, groups, legislators, etc. who oppose, or may oppose, the
   proposed legislation and the reasons for the opposition.

   Some certified fiduciaries may oppose this additional regulation, particularly those who
   regularly serve as a trustee, agent under a power of attorney or as representative payee
   outside of a court appointment. However, certified fiduciaries are members of the
   Fiduciary Board and the Board’s Regulatory Scope Subcommittee and support this
   proposal.

C. Do you know of any legislators who have an interest in or have expressed an opinion
   about the proposed legislation?

   Legislators who represent the Sun City area in Maricopa County and other districts with a
   significant senior population are potential supporters.




                                                                                              6
                                                                      Proposal 2009‐5 

D. Describe any possible risks of introducing this issue to the Legislature. For
   example, does it have the potential of subjecting a program’s non-appropriated
   funds to legislative review and control, etc.?

   Introducing this legislation could subject the regulation of fiduciaries to additional
   scrutiny and an effort to deregulate these professionals. However, the documented
   examples of abuse of vulnerable and incapacitated individuals by fiduciaries, and the
   potential for harm to the public provide strong public policy reasons for regulation.

   The Fiduciary Fund is currently subject to legislative appropriation.




                                                                                       7
                                                                       Proposal 2009‐5 

                                    ATTACHMENTS

A. Proposed Legislation

   14-5651. Fiduciaries; certification; LICENSURE; qualifications; conduct;
            removal; exemption; definitions
   A. Except as provided by subsection G of this section, the superior court shall not
      appoint a fiduciary unless that person is certified LICENSED by the supreme court.
      The supreme court shall administer the certification LICENSURE program and shall
      adopt rules and establish and collect fees necessary for its implementation. The
      supreme court shall deposit, pursuant to sections 35-146 and 35-147, the monies
      collected pursuant to this subsection in the confidential intermediary and fiduciary
      fund established by section 8-135. At a minimum the rules adopted pursuant to this
      subsection shall include the following:
      1. A code of conduct.
      2. A requirement that fiduciaries post a cash deposit or surety bond with the supreme
         court.
      3. Minimum qualifications.
      4. Biennial renewal of certification LICENSURE.
   B. As a condition of appointment, the supreme court shall require each applicant for the
      position of fiduciary to submit a full set of fingerprints to the supreme court for the
      purpose of obtaining a state and federal criminal records check to determine the
      suitability of the applicant pursuant to section 41-1750 and Public Law 92-544. The
      department of public safety may exchange this fingerprint data with the federal
      bureau of investigation.
   C. An applicant for certification LICENSURE shall:
      1. Be at least twenty-one years of age.
      2. Be a citizen of this country.
      3. Not have been convicted of a felony.
      4. Attest that the applicant has not been found civilly liable in an action that
         involved fraud, misrepresentation, material omission, misappropriation, theft or
         conversion.
      5. Attend an initial session and thereafter biennial training sessions prescribed by the
         supreme court on the duties of a fiduciary.
      6. Consent in the application form to the jurisdiction of the courts of this state for all
         actions arising under this article or article 6 of this chapter and appoint the
         fiduciary program coordinator as the lawful agent for the purpose of accepting
         service of process in any action, suit or proceeding that relates to the duties of a
         fiduciary. The program coordinator shall transmit by registered mail to the
         person's last known address the lawful service of process accepted by the program
         coordinator. Notwithstanding the provisions of this paragraph, service of process



                                                                                              8
                                                                   Proposal 2009‐5 

       on a public fiduciary or the department of veterans' services shall be made
       pursuant to the Arizona rules of civil procedure.
D. The superior court shall, and any person may, notify the supreme court if it appears
   that a fiduciary has violated a rule adopted under this section. The supreme court shall
   then conduct an investigation and hearing pursuant to its rules. If the supreme court
   determines that the fiduciary committed the violation it may revoke the fiduciary's
   certification LICENSE or impose other sanctions, including civil penalties, and shall
   notify the superior court in each county of this action. The supreme court may then
   also require the fiduciary to forfeit a cash deposit or surety bond to the extent
   necessary to compensate the court for the expenses it incurred to conduct the
   investigation and hearing.
E. A person who in good faith provides information or testimony regarding a fiduciary's
   misconduct or lack of professionalism is not subject to civil liability.
F. Persons appointed by the chief justice to serve in an advisory capacity to the fiduciary
   program, staff of the fiduciary program, hearing officers and employees of the
   administrative office of the courts who participate in the fiduciary program are
   immune from civil liability for conduct in good faith that relates to their official
   duties.
G. The requirements of this section do not apply to a financial institution. This
   exemption does not prohibit the superior court from appointing a financial institution
   as a fiduciary. The supreme court may exempt a fiduciary from the requirements of
   this section for good cause.
H. This section does not grant any fiduciary or any applicant for a certificate LICENSE
   as a fiduciary the right to a direct appeal to the supreme court.
I. The supreme court may receive and expend monies from the confidential
   intermediary and fiduciary fund established pursuant to section 8-135 for the
   purposes of performing the duties related to fiduciaries pursuant to this section.
J. For the purposes of this section:
   1. "Fiduciary" means:
       (a) A person who for a fee serves as a court appointed guardian or conservator for
           one or more persons who are unrelated to the fiduciary.
       (b) A person who for a fee serves as a court appointed personal representative and
           who is not related to the decedent, is not nominated in a will or by a power
           conferred in a will and is not a devisee in the will.
       (c) A public fiduciary appointed pursuant to section 14-5601.
       (d) The department of veterans' services.
    2. "Financial institution" means a bank that is insured by the federal deposit
       insurance corporation and chartered under the laws of the United States or any
       state, a trust company that is owned by a bank holding company that is regulated
       by the federal reserve board or a trust company that is chartered under the laws of
       the United States or this state.



                                                                                         9
                                                                            Proposal 2009‐5 


       K. THE CODE OF CONDUCT ADOPTED BY THE SUPREME COURT IN
          ACCORDANCE WITH THIS SECTION SHALL APPLY TO A LICENSED
          FIDUCIARY WHEN THE LICENSED FIDUCIARY IS ACTING IN THE
          CAPACITY     OF     GUARDIAN,     CONSERVATOR,     PERSONAL
          REPRESENTATIVE, TRUSTEE, REPRESENTATIVE PAYEE OR AGENT
          UNDER A POWER OF ATTORNEY IN ANY CAPACITY. THE SUPREME
          COURT SHALL HAVE THE AUTHORITY TO INVESTIGATE A COMPLAINT
          ALLEGING MISCONDUCT BY A LICENSED FIDUCIARY WHEN THE
          FIDUCIARY IS ACTING IN ANY OF THESE CAPACITIES AND MAY TAKE
          DISCIPLINARY ACTION AGAINST THE LICENSED FIDUCIARY AS
          APPROPRIATE. THIS SUBSECTION DOES NOT APPLY WHERE THE
          FIDUCIARY IS ACTING IN THE CAPACITY OF GUARDIAN,
          CONSERVATOR, PERSONAL REPRESENTATIVE PAYEE OR AGENT UNDER
          A POWER OF ATTORNEY AND THE FIDUCIARY IS RELATED TO THE
          CLIENT BY BLOOD, ADOPTION OR MARRIAGE.

14-5501. Durable power of attorney; creation; validity
   A. A durable power of attorney is a written instrument by which a principal designates
      another person as the principal's agent. The instrument shall contain words that
      demonstrate the principal's intent that the authority conferred in the durable power of
      attorney may be exercised:
       1. If the principal is subsequently disabled or incapacitated.
       2. Regardless of how much time has elapsed, unless the instrument states a definite
          termination time.
   B. The written instrument may demonstrate the principal's intent required by subsection A of
       this section using either of the following statements or similar language:
       1. "This power of attorney is not affected by subsequent disability or incapacity of the
       principal or lapse of time."
       2. "This power of attorney is effective on the disability or incapacity of the principal."
   C. A power of attorney executed in another jurisdiction of the United States is valid in this
      state if the power of attorney was validly executed in the jurisdiction in which it was
      created.
   D. From and after August 1, 1998, except as provided in section 28-370, an adult, known as
      the principal, may designate another adult, known as the agent, to make financial
      decisions on the principal's behalf by executing a written power of attorney that satisfies
      all of the following requirements:
       1. Contains language that clearly indicates that the principal intends to create a power of
          attorney and clearly identifies the agent.
       2. Is signed or marked by the principal or signed in the principal's name by some other
          individual in the principal's conscious presence and at the principal's direction.



                                                                                                    10
                                                                      Proposal 2009‐5 

   3. Is witnessed by a person other than the agent, the agent's spouse, the agent's children
      or the notary public.
   4. Is executed and attested by its acknowledgment by the principal and by an affidavit of
      the witness before notary public and evidenced by the notary public's certificate, under
      official seal, in substantially the following form:
      I, __________, the principal, sign my name to this power of attorney this _____ day of
      __________ and, being first duly sworn, do declare to the undersigned authority that I
      sign and execute this instrument as my power of attorney and that I sign it willingly, or
      willingly direct another to sign for me, that I execute it as my free and voluntary act
      for the purposes expressed in the power of attorney and that I am eighteen years of age
      or older, of sound mind and under no constraint or undue influence.
      ______________________
      Principal
      I, __________, the witness, sign my name to the foregoing power of attorney being
      first duly sworn and do declare to the undersigned authority that the principal signs
      and executes this instrument as his/her power of attorney and that he/she signs it
      willingly, or willingly directs another to sign for him/her, and that I, in the presence
      and hearing of the principal, sign this power of attorney as witness to the principal's
      signing and that to the best of my knowledge the principal is eighteen years of age or
      older, of sound mind and under no constraint or undue influence.
      ____________________
      Witness
      The state of _________
      County of ____________
      Subscribed, sworn to and acknowledged before me by __________, the principal, and
      subscribed and sworn to before me by __________, witness, this _____ day of
      ____________.
      (seal)
      (signed) _____________________
      ______________________________
      (notary public)
E. The execution requirements for the creation of a power of attorney provided in subsection
   D of this section do not apply if the principal creating the power of attorney is:
   1. A person other than a natural person.
   2. Any person, if the power of attorney to be created is a power coupled with an interest.
      For the purposes of this paragraph, "power coupled with an interest" means a power
      that forms a part of a contract and is security for money or for the performance of a
      valuable act.
F. A PERSON WHOSE LICENSE AS A FIDUCIARY HAS BEEN SUSPENDED OR
   REVOKED BY THE SUPREME COURT PURSUANT TO § 14-5651 MAY NOT


                                                                                            11
                                                                         Proposal 2009‐5 

      SERVE AS AN AGENT UNDER A POWER OF ATTORNEY IN ANY CAPACITY IF
      THE PERSON IS NOT RELATED TO THE PRINCIPAL BY BLOOD, ADOPTION
      OR MARRIAGE. THIS PROHIBITION DOES NOT APPLY IF THE PERSON’S
      LICENSE HAS BEEN REINSTATED AND IS IN GOOD STANDING.


   36-3221. Health care power of attorney; scope; requirements; limitations
   A. A person who is an adult may designate another adult individual or other adult
      individuals to make health care decisions on that person's behalf by executing a written
      health care power of attorney that meets all of the following requirements:
      1. Contains language that clearly indicates that the person intends to create a health care
         power of attorney.
      2. Except as provided under subsection B, is dated and signed or marked by the person
         who is the subject of the health care power of attorney.
      3. Is notarized or is witnessed in writing by at least one adult who affirms that the notary
         or witness was present when the person dated and signed or marked the health care
         power of attorney, except as provided under subsection B, and that the person
         appeared to be of sound mind and free from duress at the time of execution of the
         health care power of attorney.
   B. If a person is physically unable to sign or mark a health care power of attorney, the notary
      or each witness shall verify on the document that the person directly indicated to the
      notary or witness that the power of attorney expressed the person's wishes and that the
      person intended to adopt the power of attorney at that time.
   C. A notary or witness shall not be any of the following:
      1. A person designated to make medical decisions on the principal's behalf.
      2. A person directly involved with the provision of health care to the principal at the
         time the health care power of attorney is executed.
   D. If a health care power of attorney is witnessed by only one person, that person may not be
      related to the principal by blood, marriage or adoption and may not be entitled to any part
      of the principal's estate by will or by operation of law at the time that the power of
      attorney is executed.
   F. A PERSON WHOSE LICENSE AS A FIDUCIARY HAS BEEN SUSPENDED OR
      REVOKED BY THE SUPREME COURT PURSUANT TO § 14-5651 MAY NOT
      SERVE AS AN AGENT UNDER A POWER OF ATTORNEY IN ANY CAPACITY IF
      THE PERSON IS NOT RELATED TO THE PRINCIPAL BY BLOOD, ADOPTION
      OR MARRIAGE. THIS PROHIBITION DOES NOT APPLY IF THE PERSON’S
      LICENSE HAS BEEN REINSTATED AND IS IN GOOD STANDING.


36-3223. Agents; powers and duties; removal; responsibility
   A. The individual designated in a health care power of attorney to make health care
      decisions is an agent entitled to make and communicate these decisions while the
      principal is unable to do so.


                                                                                               12
                                                                         Proposal 2009‐5 

   B. An agent's authority to make health care decisions on behalf of the principal is limited
      only by the express language of the health care power of attorney or by court order as
      prescribed under § 36-3206.
   C. The appointment of a person to act as an agent is effective until that authority is revoked
      by the principal or by court order.
   D. A PERSON WHOSE LICENSE AS A FIDUCIARY HAS BEEN SUSPENDED OR
      REVOKED BY THE SUPREME COURT PURSUANT TO § 14-5651 MAY NOT
      SERVE AS AN AGENT UNDER A POWER OF ATTORNEY IN ANY CAPACITY IF
      THE PERSON IS NOT RELATED TO THE PRINCIPAL BY BLOOD, ADOPTION
      OR MARRIAGE. THIS PROHIBITION DOES NOT APPLY IF THE PERSON’S
      LICENSE HAS BEEN REINSTATED AND IS IN GOOD STANDING.


   14-7273: Powers of trustee conferred by trust or by law
   A. The trustee has all powers conferred on him by the provisions of this article unless
      limited in the trust instrument.
   B. An instrument which is not a trust under § 14-7231, paragraph 3 may incorporate any part
      of this article by reference.
   C. A PERSON WHOSE LICENSE AS A FIDUCIARY HAS BEEN SUSPENDED OR
      REVOKED BY THE SUPREME COURT PURSUANT TO § 14-5651 MAY NOT
      SERVE AS A TRUSTEE IN ANY CAPACITY IF THE PERSON IS NOT RELATED
      TO THE TRUSTOR BY BLOOD, ADOPTION OR MARRIAGE.              THIS
      PROHIBITION DOES NOT APPLY IF THE PERSON’S LICENSE HAS BEEN
      REINSTATED AND IS IN GOOD STANDING.


C. Proposed Changes to ACJA § 7-202(J)(2)(i)
   (Conforming changes that will be necessary if the proposed statutory changes are enacted)

   A LICENSED FIDUCIARY WHO ENGAGES IN A FIDUCIARY ROLE INCLUDING
   SERVING AS AN AGENT UNDER A POWER OF ATTORNEY, TRUSTEE OR
   REPRESENTATIVE PAYEE FOR AN INDIVIDUAL, REGARDLESS OF WHETHER OR
   NOT THE FIDUCIARY HAS BEEN COURT APPOINTED AS A FIDUCIARY FOR THE
   INDIVIDUAL, IS SUBJECT TO THE CODE OF CONDUCT REQUIREMENTS OF
   SUBSECTION (J). DISCIPLINARY ACTION MAY BE BROUGHT AGAINST A
   LICENSED FIDUCIARY WHO VIOLATES ANY PROVISION OF THIS SECTION OR
   ANY APPLICABLE LAW.      THIS SUBSECTION DOES NOT APPLY IF THE
   FIDUCIARY IS RELATED TO THE INDIVIDUAL BY BLOOD, MARRIAGE OR
   ADOPTION.

   D. California Legislation

   The California Business and Professions Code 6500: The Professional Fiduciaries Act
   requires individuals serving in a POA or trustee capacity to be licensed. The definition of


                                                                                               13
                                                                                        Proposal 2009‐5 

    “professional fiduciary” under the Code includes “… a person who acts as a trustee, agent
    under a durable power of attorney for health care, or agent under a durable power of attorney
    for finances, for more than three people or more than three families, or a combination of
    people and families that totals more than three, at the same time, who are not related to the
    professional fiduciary by blood, adoption, marriage or registered domestic partnership.
    “Professional fiduciary” does not include any of the following:

    (1) A trust company . . .
    (2) An FDIC-insured institution . . .
    (3) A person employed by an entity described in paragraph (1) or (2) who is acting in the
        course and scope of that employment.
    (4) Any public officer or public agency, including the public guardian, public conservator, or
        other agency of the State of California or a county of California, when that public officer
        or public agency is acting in the course and scope of official duties, or any regional center
        for persons with developmental disabilities . . . . A trust company . . .
    (5) An FDIC-insured institution . . .

    (6) A person employed by an entity described in paragraph (1) or (2) who is acting in the
        course and scope of that employment.

    (7) Any public officer or public agency, including the public guardian, public conservator, or
        other agency of the State of California or a county of California, when that public officer
        or public agency is acting in the course and scope of official duties, or any regional center
        for persons with developmental disabilities . . . .




Y:\Boards, Committees, Commissions\FIDUCIARY BOARD\SUBCOMMITTEES\POA Subcommittee\Legislative Proposal for Submission
August 22 08.doc




                                                                                                                  14
Proposal # 6.  Criminal Code Sentencing Reorganization, cleanup (Proposed by Jerry Landau, 
Director of Government Affairs, Arizona Supreme Court) 
 
In the 2008 session the Legislature passed Chapter 301, HB 2207, and Criminal Code Sentencing 
Reorganization.  A review of the 165 page bill revealed the need for technical changes in three 
statutes and conforming changes to one statute.  These changes are as follows: 
 
A.R.S. §13‐704, Dangerous Offenses – correct a statutory reference, 
§13‐708,  Offenses  committed  while  released  from  confinement  –  remove  an  errant  comma, 
§13‐3419 – Multiple drug offenses not committed on the same occasion – place the mitigated 
and  aggravated  sentencing  provisions  in  chart  form,  round  down  to  the  nearest  tenth  to 
correspond with other sentencing statutes, 
§13‐4515, Duration of order; notice of dismissed charge or voided order – correct a statutory 
reference. 
                                                                          Proposal 2009‐6 

                        ARIZONA JUDICIAL COUNCIL
                         Legislative Request for Proposal
                             2009 Legislative Session

                         Use the TAB key to navigate through this form.
                  Submit electronically to Tracey Gardner, TrGardner@courts.az.gov



Subject Matter of Proposal:                          Date:

Criminal Code Sentencing
Reorganization; cleanup                              September 18, 2008

                                    Proposal Requested By:

Name:          Jerry Landau

Title:         Director Of Government Affairs, Arizona Supreme Court

Address:       1501 W. Washington, Ste 411 Phoenix, AZ 85007

Telephone:     602-452-3275

E-mail:        jlandau@courts.az.gov


SECTION I: PROPOSAL
         A.    Please summarize the proposal

               In 2008 the Legislature passed Chapter 301, HB 2207, Criminal Code Sentencing
               Reorganization. A review of the 165 page bill revealed the need for technical
               changes in three statutes and conforming changes to one statute.

          B.   Describe in detail the issue, problem, or need for the proposal.

               To achieve the intent of the 2008 legislation.

          C.   Describe how the problem will be corrected or the need served by the
               proposal. Please provide supporting information, e.g., statistics on increased
               caseloads, reports, etc.

               Enact the necessary changes to the affected statutes.




                                                                                            1
                                                                 Proposal 2009‐6 

   D.    Provide the contact information of any individuals with relevant
         expert knowledge on this subject.
         Jerry Landau, Dir. Government Affairs, Arizona Supreme Court (see above)

   E.    Attach the recommended language of the legislation to this form. Please
         include the entire section of law, use UPPER CASE to designate new
         language and strikethrough to designate stricken language.              (The
         Government Affairs group will assist in final drafting as the proposal moves
         forward).

   F.    Can the desired change be achieved by another method? How?

         No

            Court Rule            Administrative Order
         N/A

   G.    If adopted by the Arizona Legislature, would the regular effective date (90
         days after adjournment of the legislative session) be acceptable, or is there a
         reason for an emergency effective date (effective immediately upon signature
         of the Governor) or a delayed effective date? If a delayed effective date is
         requested, what date is recommended?

         Regular effective date


SECTION II: IMPACTS
   A.    Check ALL courts that could be affected.

              Supreme        Appellate X Superior         Limited Jurisdiction

    B.   List the Arizona Revised Statute(s), Court rules or Administrative
         orders, etc. affected by the proposed legislation.

         A.R.S. §13-704, Dangerous Offenses, §13-708, Offenses committed while
         released from confinement, §13-3419 – Multiple drug offenses not committed on
         the same occasion, §13-4515, Duration of order; notice of dismissed charge or
         voided order

    C    Describe anticipated impacts of proposed legislation on the administration of
         the courts. For example: adoption or revision of court rules or procedures;
         shift of cases from one court level to another; added or revised reporting
         requirements; collection of statistics; impact on workload level, automation
         requirements, etc.

         Minimal training requirements


                                                                                      2
                                                                   Proposal 2009‐6 

    D.   Describe the fiscal impact of this legislation. Will an appropriation of
         additional funds be necessary if this legislation passes? If so, for what
         purpose and how much will be required?

         None

    E.   Will this legislation impact other governmental agencies? How?

         Minimal training for prosecutors and defense bar

    F.   Describe the consequences if the proposed legislation is not pursued or
         passed this year.

         Incorrect statutory references, more complicated drug sentencing structure

   G.    How will this legislation advance the goals of Chief Justice McGregor’s
         Strategic Agenda, Good to Great?

         Enhances the administration of justice


SECTION III: SUPPORT OR OPPOSITION
   A.    Please identify any agencies, groups, or legislators, etc. who support, or may
         support the proposed legislation and the reasons for the support.

         Courts, prosecutors, criminal defense bar

   B.    Please identify any agencies, groups, legislators, etc. who oppose, or may
         oppose, the proposed legislation and the reasons for the opposition.

         None

   C.    Do you know of any legislators who have an interest in or have
         expressed an opinion about the proposed legislation?

         Rep. Driggs, Sinema, Sen. C. Gray, Cheuvront (support)

   D.    Describe any possible risks of introducing this issue to the Legislature. For
         example, does it have the potential of subjecting a program’s non-
         apropriated funds to legislative review and control, etc.?
         None




                                                                                      3
Custody of Records Proposal- Arizona Association of Counties (on behalf of
Superior Court Clerks)

According to AACo, current statute is sometimes ambiguous as to the role of the
superior court clerk regarding the management of and access to the official court
record. The proposal specifies that records would be kept, disposed of, destroyed and
made available to archives in accordance with law or rule of court (currently law only
specifies court rule). The clerk would be required to keep all records in the clerk’s
county in accordance with law or rule of court. The proposal removes permission for
the clerk to produce an abstract of marriage in lieu of a reproduction of the marriage
license. The proposal also adds “Supreme Court records” to the list of documents that
the clerk of the Supreme Court may destroy, pursuant to rules adopted by the Supreme
Court.

Current law allows the presiding judge to provide for the electronic filing of records and
electronic access to records, pursuant to rules adopted by the Supreme Court. The
proposal would continue to allow the presiding judge to provide for electronic filing, but
the clerk would provide for electronic access to all e-filed/digitized records. The clerk
would be required to keep custody of the electronic record in the clerk’s county. The
Supreme Court may provide electronic access to data elements drawn from these
records as maintained by the clerk in accordance with law or rule of court.

The authority to set the fee for electronic access to superior court records is transferred
from the presiding judge to the clerk of the superior court, although the fee must be set
in coordination with the board of supervisors and the presiding judge. The fee is
capped at the actual cost of service. Current law allows these fees (which are
deposited in the document storage and retrieval conversion fund) to be used for
improving access to court records, the proposal restricts the use of these monies to
improving electronic access to court records.
Unlawful Assembly - Department of Public Safety

       The proposal amends A.R.S. §13-3804, Duty of officers to
disperse unlawful assembly, by adding a “peace officer” and
removing a “justice of the peace” from the list of persons who are
authorized to issue an unlawful assembly dispersal order and further
removes a “magistrate” from those who are required to the arrest for
failing to disperse.

      The current statute authorizes the sheriff, his deputies, officials
governing the city or town or justice of the peace and constables to
issue a dispersal order when an unlawful assembly occurs. The
current statute also mandates that the “magistrate and officers” shall
arrest those who fail to disperse.

      The statute was written in 1901. California has a similar law. In
1998, California law was amended to remove Justice of the Peace
from those authorized to issue an unlawful assembly order.

      The intent of the proposal is to insert “peace officer” in order to
permit DPS to issue an order and effectuate an arrest. Removal of
the judicial officer was added after comment from various presiding
judges.

 

								
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