House Engrossed Senate Bill
State of Arizona
First Regular Session
SENATE BILL 1072
amending sections 12-348 and 12‑910, Arizona Revised Statutes; relating to judicial review of administrative decisions.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 12-348, Arizona Revised Statutes, is amended to read:
12-348. Award of fees and other expenses against the state or a city, town or county; reduction or denial of award; application; basis for amount of award; source of award; definitions
A. In addition to any costs that are awarded as prescribed by statute, a court shall award fees and other expenses to any party other than this state or a city, town or county that prevails by an adjudication on the merits in any of the following:
1. A civil action brought by this state or a city, town or county against the party.
2. A court proceeding to review a state agency decision pursuant to chapter 7, article 6 of this title or any other statute authorizing judicial review of agency, city, town or county decisions.
3. A proceeding pursuant to section 41‑1034.
4. A special action proceeding brought by the party to challenge an action by this state or a city, town or county against the party.
5. An appeal by this state to a court of law from a decision of the personnel board under title 41, chapter 4, article 6.
6. A civil action brought by the party to challenge the seizure and sale of personal property by this state or a city, town or county.
7. A civil action brought by the party to challenge a rule, decision, guideline, enforcement policy or procedure of a state agency or commission that is statutorily exempt from the rulemaking requirements of title 41, chapter 6 on the grounds that the rule, decision, guideline, enforcement policy or procedure is not authorized by statute or violates the constitution of the United States or this state.
B. In addition to any costs that are awarded as prescribed by statute, except as provided in subsection C of this section, a court may award fees and other expenses to any party, other than this state or a city, town or county, that prevails by an adjudication on the merits in an action brought by the party against this state or a city, town or county challenging:
1. The assessment, collection or refund of taxes or in an action brought by this state or a city, town or county against the party to enforce the assessment or collection of taxes or the denial of a refund.
2. The adequacy or regularity of notice of delinquent taxes.
3. The regularity of sales of property for delinquent taxes.
C. The court in its discretion may deny the award provided for in this section or may reduce the award if it finds that any of the following applies:
1. During the course of the proceeding the prevailing party unduly and unreasonably protracted the final resolution of the matter.
2. The reason that the party other than this state or a city, town or county has prevailed is an intervening change in the applicable law.
3. The prevailing party refused an offer of civil settlement that was at least as favorable to the party as the relief ultimately granted.
D. A party may apply pursuant to the applicable procedural rules for an award of attorney fees and other expenses authorized under this section and shall include as part of the application evidence of the party's eligibility for the award and the amount sought, including an itemized statement from the attorneys and experts stating the actual time expended in representing the party and the rate at which the fees were computed.
E. The court shall base any award of fees as provided in this section on prevailing market rates for the kind and quality of the services furnished, except that:
1. An expert is not eligible for compensation at a rate in excess of the highest rate of compensation for experts paid by this state or a city, town or county except for awards made pursuant to subsection B of this section.
2. Except for awards made pursuant to subsection B of this section, the award of attorney fees may not exceed the amount that the prevailing party has paid or has agreed to pay the attorney or a maximum amount of seventy‑five dollars per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceeding involved, justifies a higher fee.
3. For awards made pursuant to subsection B of this section, the award of attorney fees may not exceed the amount that the prevailing party has paid or agreed to pay the attorney or a maximum amount of three hundred fifty dollars per hour.
4. Except for awards made pursuant to subsection B of this section, an award of fees against a city, town or county as provided in this section shall not exceed ten thousand dollars.
5. For awards made pursuant to subsection B of this section, an award of fees against this state or a city, town or county shall not exceed seventy-five thousand dollars for fees incurred at each level of judicial appeal.
6. For each calendar year beginning from and after December 31, 2015, the income dollar amounts for maximum awards made pursuant to subsections subsection B and E of this section shall be adjusted by the attorney general according to the average annual change in the metropolitan Phoenix consumer price index published by the United States bureau of labor statistics. The revised dollar amounts shall be raised to the nearest whole dollar. The income dollar amounts may not be revised below the amounts prescribed in the prior calendar year.
F. The particular state agency over which a party prevails shall pay the fees and expenses awarded as provided in this section from any monies appropriated to the agency for that purpose. If no agency is involved or if an agency fails or refuses to pay fees and other expenses within thirty days after demand by a person who has received an award pursuant to this section, and if no further review or appeals of the award are pending, the person may file a claim for the fees and other expenses with the department of administration, which shall pay the claim within thirty days, in the same manner as an uninsured property loss under title 41, chapter 3.1, article 1. If, at the time the agency failed or refused to pay the award, it had appropriated monies either designated or assignable for the purpose of paying awards, the legislature shall reduce the agency's operating appropriation for the following year by the amount of the award and shall appropriate the amount of the reduction to the department of administration as reimbursement for the loss.
G. A city, town or county shall pay fees and expenses awarded as provided in this section within thirty days after demand by a party who has received an award if no further review or appeal of the award is pending.
H. This section does not:
1. Apply to an action arising from a proceeding before this state or a city, town or county in which the role of this state or a city, town or county was to determine the eligibility or entitlement of an individual to a monetary benefit or its equivalent, to adjudicate a dispute or issue between private parties or to establish or fix a rate.
2. Apply to proceedings brought by this state pursuant to title 13 or 28.
3. Entitle a party to obtain fees and other expenses incurred in making an application for an award pursuant to this section for fees and other expenses.
4. Apply to proceedings involving eminent domain, foreclosure, collection of judgment debts or proceedings in which this state or a city, town or county is a nominal party.
5. Personally obligate any officer or employee of this state or a city, town or county for the payment of an award entered under this section.
6. Apply, except as provided in subsection A, paragraph 5 of this section, to proceedings involving the personnel board under title 41, chapter 4, article 6.
7. Apply to proceedings brought by a city, town or county pursuant to title 13 or 28.
8. Apply to proceedings brought by a city, town or county on collection of taxes or pursuant to traffic ordinances or to criminal proceedings brought by a city, town or county on ordinances which contain a criminal penalty or fine for violations of those ordinances.
I. For the purposes of this section:
1. "Fees and other expenses" means the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which the court finds to be directly related to and necessary for the presentation of the party's case and reasonable and necessary attorney fees, and in the case of an action to review an agency decision pursuant to subsection A, paragraph 2 of this section, all fees and other expenses that are incurred in the contested case proceedings in which the decision was rendered.
2. "Party" means an individual, partnership, corporation, limited liability company, limited liability partnership, association or public or private organization.
3. "State" means this state and any agency, officer, department, board or commission of this state.
4. "Taxes" includes all taxes and related levies and assessments addressed in section 12‑163.
Sec. 2. Section 12-910, Arizona Revised Statutes, is amended to read:
12-910. Scope of review
A. An action to review a final administrative decision shall be heard and determined with convenient speed. If requested by a party to an action within thirty days after filing a notice of appeal, the court shall hold an evidentiary hearing, including testimony and argument, to the extent necessary to make the determination required by subsection E of this section. The court may hear testimony from witnesses who testified at the administrative hearing and witnesses who were not called to testify at the administrative hearing.
B. Relevant and admissible exhibits and testimony that were not offered during the administrative hearing shall be admitted, and objections that a party failed to make to evidence offered at the administrative hearing shall be considered, unless either of the following is true:
1. The exhibit, testimony or objection was withheld for purposes of delay, harassment or other improper purpose.
2. Allowing admission of the exhibit or testimony or consideration of the objection would cause substantial prejudice to another party.
C. For review of final administrative decisions of agencies that are exempt from sections 41‑1092.03 through 41‑1092.11, pursuant to section 41‑1092.02, the trial shall be de novo if trial de novo is demanded in the notice of appeal or motion of an appellee other than the agency and if a hearing was not held by the agency or the proceedings before the agency were not stenographically reported or mechanically recorded so that a transcript might be made. On demand of any party, if a trial de novo is available under this section, it may be with a jury, except that a trial of an administrative decision under section 25‑522 shall be to the court.
D. The record in the superior court shall consist of the record of the administrative proceeding, and the record of any evidentiary hearing, or the record of the trial de novo.
E. After reviewing the administrative record and supplementing evidence presented at the evidentiary hearing, the court may affirm, reverse, modify or vacate and remand the agency action. The court shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion. The court shall affirm the agency action unless the court concludes that the agency's action is contrary to law, is not supported by substantial evidence, is ARBITRARY and capricious or is an abuse of discretion.