Judge Coury ruled that the section of HB 2810 which requires a defendant to be convicted before his property can be forfeited is procedural in nature and thus applies to pending cases.

November 9, 2021

Recently, in one of our pending cases, the Honorable Christopher Coury ruled that portions HB 2810, which effectively repealed Arizona’s Forfeitures laws, is retroactive. HB 2810 took effect on September 30, 2021.Under Arizona law, statutes are not retroactive unless expressly declared in a statute itself. A.R.S. § 1-244. Statutory changes in procedures may be applied to proceedings already pending, unless the statute affects or impairs vested rights. Arizona Dept. of Economic Security v. Reinstein, 214 Ariz. 209 (App. 2007). HB 2810 contained no retroactivity provision. As such, the issue before Judge Coury was whether HB 2810’s changes were procedural.

Subsection (B) A.R.S. § 13-4308. of this statute provides as follows: “The State may not proceed with further forfeiture proceedings before a criminal conviction for an offense to which forfeiture applies unless no timely claim has been filed or a conviction is waived pursuant to this chapter.” A.R.S. § 13-4308(B) (emphasis added). Another amendment enacted through HB 2810 was to A.R.S. § 13-4304, which now provides: “Except as provided in Subsections B, C and D of this section, all property, including all interests in such property, described in a statute providing for its forfeiture is subject to forfeiture if both of the following apply: (1) The owner is convicted of an offense to which forfeiture applies; and (2) the State establishes by clear and convincing evidence that the property is subject to forfeiture as provided in Subsection E of this section.” A.R.S. § 13-4304(A) (emphasis added). After hearing argument on our pending motion, Judge Coury found:

The plain language of A.R.S. §§ 13-4304 and 13-4308 enacted in HB 2810 evince a clear intent to change procedures through which forfeiture occurs under Arizona law. These two changes in HB 2810 establish the timing of when forfeiture proceedings will proceed in Superior Court – namely, after a criminal conviction. These two statutory changes enacted through HB 2810 do not change the definition of predicate acts, do not change punishment, and do not shift the burden of proof. Rather, they “proscribe the method of enforcing rights.” In re Shane B., 198 Ariz. 85, 88 (2000).1 Because A.R.S. §§ 13-4304 and 13-4308 change only the timing of when forfeiture proceedings may occur, the State has not lost any rights that could have vested…A.R.S. §§ 13-4304 and 13-4308 are procedural, and therefore, apply retroactively to forfeiture proceedings currently pending. As such, no further forfeiture proceedings in this matter may proceed until a criminal conviction has been obtained or is waived, subject to the limited exceptions set forth in the Orders below.

It is unknown whether the State will elect to appeal Judge Coury’s Order. Stay tuned.