SB1083 - 502R

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

Section 1. Section 13-4315, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4315. Allocation of forfeited property

A. Any property, including all interests in property, forfeited to the state under this title shall be transferred as requested by the attorney for the state to the seizing agency or to the agency or political subdivision employing the attorney for the state, which may do any of the following:

1. Sell, lease, lend or transfer the property to any local or state government entity or agency or political subdivision, law enforcement agency or prosecutorial agency or any federal law enforcement agency which operates within this state for official federal, state or political subdivision use within this state, with expenses for keeping and transferring such property to be paid by the recipient. Property may not be allocated for official use if the fair market value of the property substantially exceeds the agency's probable cost of purchasing other property equally suited for the intended official use. Property that is allocated for official use may not be assigned for use by any person who supervised or exercised discretion in its forfeiture unless the use is approved in writing by the head of the agency.

2. Sell forfeited property by public or otherwise commercially reasonable sale with expenses of keeping and selling the property and the amount of all valid interests established by claimants paid out of the proceeds of the sale with the balance paid into the anti‑racketeering fund of the state or of the county in which the political subdivision seizing the property or prosecuting the action is located. A sale of forfeited property may not be made to any employee of the seizing agency, any person who participated in the forfeiture, any employee of a contractor selling the property on behalf of the seizing agency or any member of the immediate family of any of these employees or persons.

3. Destroy or use for investigative purposes any illegal or controlled substances or other contraband at any time more than twenty days after seizure, on written approval of the attorney for the state, preserving only such material as may be necessary for evidence.

4. Sell, use or destroy all raw materials, products and equipment of any kind used or intended for use in manufacturing, compounding or processing a controlled substance.

5. Compromise and pay claims against property forfeited pursuant to any provision of this section.

6. Make any other disposition of forfeited property authorized by law for the disposition of property of the state, government entity, agency or political subdivision.

B. Notwithstanding subsection A of this section or any other provision of law to the contrary:

1. If the property forfeited is money, and a law enforcement agency can specifically identify monies as being from its investigative funds or as being exchanged for property from its investigative property, the monies shall be remitted to the investigative fund. If there are additional forfeited monies or monies tendered on satisfaction by an interest holder which cannot be specifically identified, the court shall order the monies returned to each law enforcement agency that makes a showing of costs or expenses which it incurred in connection with the investigation and prosecution of the matter and shall order all excess monies remaining after such returns deposited in the anti‑racketeering fund of this state or of the county in which the political subdivision seizing the monies or prosecuting the action is located, established pursuant to section 13‑2314.01 or 13‑2314.03.

2. If the property declared forfeited is an interest in a vehicle, the court shall order it forfeited to the local, state or other law enforcement agency seizing the vehicle for forfeiture or to the seizing agency.

C. Monies in any anti‑racketeering fund established pursuant to this title may be used, in addition to any other lawful use, for:

1. The payment of any expenses necessary to seize, detain, appraise, inventory, protect, maintain, preserve the availability of, advertise or sell property that is subject to forfeiture and that is seized, detained or forfeited pursuant to this title or of any other necessary expenses incident to the seizure, detention, preservation or forfeiture of the property. The payments may include payments for contract services and payments to reimburse any federal, state or local agency for any expenditures made to perform the functions of the seizing agency.

2. The payment of awards for information or assistance leading to a civil or criminal proceeding under this title.

3. The payment of compensation from forfeited property to injured persons as provided in section 13‑4311, subsection N, paragraph 3.

D. Each attorney for the state shall submit a copy of each forfeiture judgment, including each order of forfeiture, to the Arizona criminal justice commission within sixty days after the forfeiture judgment becomes final or after the conclusion of appellate review, if any.

E. Notwithstanding any other law, for the purposes of this section, the Arizona state guard is considered a seizing AGENCY in cases in which the guard participates and cooperates with state or local law enforcement agencies in activities that result in a seizure of property for forfeiture under this chapter. END_STATUTE

Sec. 2. Section 26-122, Arizona Revised Statutes, is amended to read:

START_STATUTE26-122. Components of militia

A. The militia is divided into the national guard of Arizona, the arizona state guard when organized, and the unorganized militia.

B. The national guard is organized under titles 10 and 32, United States Code, and consists of commissioned officers, warrant officers, enlisted personnel, organizations, staffs, corps and departments of the federally recognized and regularly commissioned, warranted and enlisted militia of the state, organized and maintained pursuant to law, and all members thereof honorably retired by age or disability.

C. The numerical strength, composition, distribution, organization, arms, uniforms, equipment, training and discipline of the federally recognized national guard shall be prescribed by the governor in conformity with the allocation of units to the state by the department of the army and the department of the air force of the United States.

D. The inactive national guard consists of commissioned, warranted and enlisted personnel relieved from assignment to the national guard by the adjutant general, or at their own request, under regulations prescribed by the department of national defense of the United States, and not reassigned to another component of the armed forces of the United States.

E. The unorganized militia consists of members of the militia not members of the national guard or state guard when organized. END_STATUTE

Sec. 3. Section 26-166, Arizona Revised Statutes, is amended to read:

START_STATUTE26-166. Immunity of national guard and Arizona state guard members on active duty; arrest; civil actions; exemption from jury duty

A. A member of the national guard or the Arizona state guard, unless charged with commission of a felony or treason, shall not be arrested while on active duty with the national guard or the Arizona state guard in camp, maneuvers or formations, or while engaged in armory drill, or while on the way to or from such duties.

B. In any civil action, a member of the national guard or the Arizona state guard is entitled to the same immunity protection afforded public employees and law enforcement for acts that occur within the scope of the national guard or Arizona state guard member's duties if those acts are performed as a result of a direct order from a commanding officer or are otherwise consistent with current standard operating procedures and protocols.

C. A member of the national guard or the Arizona state guard while on active duty shall not be liable for jury duty. END_STATUTE

Sec. 4. Section 26-168, Arizona Revised Statutes, is amended to read:

START_STATUTE26-168. Absence from employment for military duty; vacation and seniority rights; violation; classification

A. An employer shall not refuse to permit members of the national guard, the Arizona state guard or the United States armed forces reserves to take leaves of absence from employment for the purpose of complying with competent orders of the state or United States for active duty, or to attend camps, maneuvers, formations or armory drills. The leaves of absence shall not affect vacation rights that employees otherwise have, except that an employer need not consider the period of absence as a period of work in determining eligibility for vacation and the amount of vacation pay to which the employee is entitled.

B. A member of the national guard, the Arizona state guard or the United States armed forces reserves shall not lose seniority or precedence while absent under competent military orders. On return to employment the employee shall be returned to the employee's previous position, or to a higher position commensurate with the employee's ability and experience as seniority or precedence would ordinarily entitle the employee.

C. An officer or employee of this state, or any department or political subdivision of this state, who is a member of the national guard, the Arizona state guard or the United States armed forces reserves shall be entitled to leave of absence pursuant to section 38‑610 from the individual's duties without loss of time or efficiency rating on all days during which the individual is engaged in field training as provided by this chapter, and for a period during leave of absence not to exceed thirty days in any two consecutive years the individual is entitled to pay. For the purposes of this section, an officer or employee shall not be charged military leave for days on which the individual was not otherwise scheduled for work.

D. When ordered by the governor to perform training or duty under this section or section 26‑171, subsection C, section 26‑172, 26-174 or section 26‑175, members of the Arizona national guard or the Arizona state guard shall have the protections afforded to persons on federal active duty by the soldiers and sailors civil relief act of 1940 (54 Stat. 1178; 50 United States Code App. sections 501 through 548 and 560 through 591) and by the uniformed services employment and reemployment rights act of 1994 (108 Stat. 3149; 38 United States Code sections 4301 through 4333).

E. A person violating any provision of subsection A or B of this section is guilty of a class 1 misdemeanor. The county attorney shall prosecute violations of this section in superior court. END_STATUTE

Sec. 5. Section 26-174, Arizona Revised Statutes, is amended to read:

START_STATUTE26-174. Arizona state guard; appropriation

A. If the national guard of Arizona or a major portion thereof is called into active federal service, or if the national guard or a major portion thereof is alerted for federal service or for any other reason the governor considers to be necessary, the governor may establish an armed force for the safety and protection of the lives and property of the citizens of the state which shall be known as the Arizona state guard.

A. An armed force, known as the Arizona state guard, is established for the purpose of securing the safety and protection of the lives and property of the citizens of this state. The intent of the Arizona state guard is to provide a mission-ready volunteer military force for use by this state in homeland security and community service activities as a supplement to the national guard of Arizona and state and local law enforcement agencies. The Arizona state guard exists as part of the militia under article XVI, section 2, Constitution of Arizona, and a defense force under 32 United States Code section 109.

B. The mission of the state guard is:

1. To support this state in securing the border with Mexico and supplement the efforts of law enforcement and state agencies.

2. Augment the national guard.

3. Support county and municipal leaders in combating international criminal activity.

4. Respond to natural and manmade disasters.

5. Search and rescue efforts.

6. Support community activities.

7. Other missions directed by the governor.

B. C. The Arizona state guard shall insofar as practicable be is governed by and subject to the laws of the state provisions of this title pertaining to the Arizona national guard. The governor legislature, with the governor's approval, shall issue or cause to be issued rules to govern administration and organization of the Arizona state guard.

C. Appropriations made to the national guard shall be deemed appropriated to both the national guard and the Arizona state guard, if and when the latter organization is established, and any funds that are unexpended from appropriations to the national guard may be used for establishment and maintenance of the Arizona state guard.

D. The sum of one million four hundred thousand dollars is appropriated from the gang and immigration intelligence team enforcement mission border security and law enforcement subaccount established by section 41-1724 each fiscal year to the Arizona state guard for its training, operations and maintenance costs. The legislature may appropriate additional amounts if necessary. The Arizona state guard may also accept gifts, grants and donations, including from nonprofit charitable organizations and foundations that qualify under section 501(c)(3) or 501(c)(4) of the United States internal revenue code. The Arizona state guard shall submit an annual budget to the legislature.

E. Pursuant to section 38‑211, the governor shall appoint and commission a commander of the Arizona state guard based on the applicant's background, age, experience, education, advancement in the armed forces of the United States and willingness to serve. The commander may appoint subordinate officers, warrant officers and enlisted personnel. The commander shall:

1. Appoint key command and staff positions. The personnel complement of the Arizona state guard shall not exceed four full-time equivalent employees.

2. Investigate and evaluate members of the Arizona state guard.

3. Promote and establish standard operating procedures, unit regulations and other orders and publications to maintain efficient operations for mission accomplishment.

F. The governor may activate the Arizona state guard for any of the following:

1. To assist the national guard.

2. To support federal, state or local agencies in responding to natural or manmade disasters.

3. For other events that warrant activation, including supporting law enforcement, or the pursuit, arrest and detention of individuals engaging in cross-border criminal activity. In the case of unilateral operations ordered by the governor, the Arizona state guard may detain and arrest until a law enforcement agency takes over.

G. The chief of police of a municipality or county sheriff may request the activation of the Arizona state guard to supplement local law enforcement assets in specifically identified circumstances. The commander may enter into agreements and memoranda of understanding as necessary to clarify the extent and procedures of operation.

H. The commander may authorize:

1. The cooperation and participation of the Arizona state guard with state or local law enforcement agencies in law enforcement activities that result in the seizure of property for forfeiture under title 13, chapter 39 and accept an allocation of such forfeited property under section 13-4315.

2. The close continuous pursuit of ongoing cross-border criminal activity, including entering federal lands, state trust land and adjacent states. The commander shall immediately notify the governor of the action and circumstances involved.

I. Except as provided in subsection H of this section, the Arizona state guard shall not be deployed outside the boundaries of this state except that on the written request of the governor of another state, and at the discretion of the governor of this state, the governor may order all or part of the Arizona state guard to assist the military or police force of the other state who are actually engaged in defending the other state, subject to the following conditions:

1. The governor of this state may recall any deployed forces for any reason and at the governor's sole discretion.

2. The governor of the other state must agree in writing, before deployment, that total reimbursement to this state will be made for the full cost of the activation, deployment and redeployment.

J. The commander shall submit the following reports to the president of the senate, the speaker of the house of representatives, the governor and the adjutant general:

1. On January 1 of each year an annual report including the current readiness of the Arizona state guard, critical factors affecting the assigned mission and a proposed operating budget for the next fiscal year.

2. On reaching mission capability status, a monthly readiness report on the capability of the force to conduct its primary and secondary missions.

K. the commander of the Arizona state guard shall maintain and preserve the individual, unit and organization records of the Arizona state guard. END_STATUTE

Sec. 6. Title 26, chapter 1, article 3, Arizona Revised Statutes, is amended by adding sections 26-174.01, 26-174.02 and 26-174.03, to read:

START_STATUTE26-174.01. Arizona state guard; recruitment of volunteers

A. The commander of the Arizona state guard shall Provide for the recruitment of volunteers from throughout this state.

B. A person shall not be commissioned or enlisted in the Arizona state guard:

1. Unless the person is a citizen, or a legal resident who has declared the intention to become a citizen, of the United States.

2. If the person has been expelled or dishonorably discharged from any military or naval force of the United States, this state or another state.

C. At the time of commission or enlistment, each member joining the Arizona state guard shall take and subscribe the following oath, in addition to the oath required by law of officers:

I do solemnly swear that I will well and faithfully perform my duties as a member of the Arizona state guard to the best of my ability. I will bear true faith and allegiance to the state of Arizona. I will serve the state of Arizona honestly and faithfully against all enemies. I will obey the orders of the governor and the officers placed over me, according to law, so help me God.

D. Commission or enlistment in the Arizona state guard does not exempt a person from service in the uniformed service of the United States under federal law. END_STATUTE

START_STATUTE26-174.02. Arizona state guard; discipline and order

A. The commander of the Arizona state guard shall:

1. Adopt and implement high standards for maintaining military discipline and order.

2. Apply and use the uniform code of military justice, inquiries, officer boards and appropriate rules and manuals to maintain discipline and order.

B. The uniform code of military justice (10 United States Code section 801 et seq.) and the regulations adopted under the uniform code and the manual for courts-martial of the United States (Executive Order 12473 of April 13, 1984) are adopted for application to the Arizona state guard. END_STATUTE

START_STATUTE26-174.03. Arizona state guard; assets and financial support

A. Subject to appropriation, each member of the Arizona state guard shall be compensated not more than:

1. One hundred dollars per day of service under competent orders of activation or in attending not more than five days of training per year.

2. Fifty dollars for not more than one day of training per month.

B. Full-time Arizona state guard personnel are eligible for compensation according to the pay grade and tables established by the adjutant general and general staff for the Arizona national guard pursuant to section 26-115.

C. With the governor's approval, the commander of the Arizona state guard may procure a policy of group insurance for members of the Arizona state guard covering and insuring members AGAINST injury while serving under competent orders of activation or attending training. The estate of a member who dies as a result of injury or disability incurred while performing official duties under orders of activation or training is entitled to a death benefit calculated pursuant to rules adopted by the commander.

D. The Arizona state guard is exempt from the requirements of title 41, chapter 23. For the use of the Arizona state guard:

1. The governor may requisition from the United States secretary of defense spare arms, ammunition, clothing and equipment and, when authorized, surplus military assets.

2. The governor may make available national guard armories, equipment and other state premises and property.

3. School districts may allow the use of school buildings and grounds on terms prescribed by the commander of the Arizona state guard.

E. In addition to legislative appropriation, the Arizona state guard may accept unconditional gifts, grants or devises from any public or private source including state and local government entities, agencies, instrumentalities, political subdivisions and budget units. END_STATUTE

Sec. 7. Section 26-1001, Arizona Revised Statutes, is amended to read:

START_STATUTE26-1001. Definitions

In this chapter, unless the context otherwise requires:

1. "Accuser" means a person who signs and swears to charges, a person who directs that charges nominally be signed and sworn to by another and any other person who has an interest other than an official interest in the prosecution of the accused.

2. "Apprehend" or "apprehension" means taking a person into custody.

3. "Arrest" means the restraint of a person by an order, not imposed as a punishment for an offense, directing the person to remain within certain specified limits.

4. "Candidate" means a candidate of the Arizona military academy.

5. "Code" means the Arizona code of military justice as set forth in this chapter.

6. "Commanding officer" means only commissioned officers.

7. "Confinement" means the physical restraint of a person.

8. "Judge advocate" means an officer of the judge advocate general's corps of the United States army or the army national guard of the United States or an officer of the United States air force or the air national guard of the United States who is designated as a judge advocate.

9. "Military" means any or all of the armed forces of this state, the United States or any other state.

10. "Military judge" means an official of a general or special court‑martial detailed in accordance with section 26‑1026.

11. "National guard" means the national guard of Arizona and the Arizona state guard when organized.

12. "Officer in charge" means a member of the National guard designated as the officer in charge by an appropriate authority.

13. "Record", if used in connection with the proceedings of a court‑martial, means an official written transcript, written summary or other writing relating to the proceedings or an official audiotape, videotape or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.

14. "State judge advocate" means the commissioned officer responsible for supervising the administration of military justice in the national guard.

15. "Superior commissioned officer" means a commissioned officer superior in rank or command. END_STATUTE

Sec. 8. Appropriation; purpose; exemption

A. In addition to the monies appropriated pursuant to section 26-174, Arizona Revised Statutes, the sum of $500,000 is appropriated from the state general fund in fiscal year 2011-2012 to the Arizona state guard for training, operations and maintenance costs.

B. The appropriation made in subsection A of this section is exempt from the provisions of section 35-190, Arizona Revised Statutes, relating to lapsing of appropriations.

Sec. 9. Emergency

This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law.