Arizona

Civil Procedure

Civil Procedure

Rule 65.2 – Action Under A.R.S. Section 23-212 or Section 23-212.01

(a) Commencement of Action. The county attorney may bring an action under A.R.S. § 23-212 or § 23-212.01 by filing a verified complaint with the clerk. The attorney signing the complaint must verify that he or she believes the assertions in the complaint to be true based on a reasonably diligent inquiry.
(b) Contents of Complaint. The complaint must include the following:

(1) The employer’s name and address(es);
(2) The employer’s business licenses subject to suspension or revocation, and the licensing agency(ies)’ identity and address, including the identity(ies) and mailing address(es) of the agency official(s) authorized to accept service;
(3) A statement of specific facts alleged to show that one or more employees are unauthorized aliens;
(4) A statement of specific facts alleged to show that the employer intentionally or knowingly employed one or more unauthorized aliens; and
(5) If the action is for a second violation, the first action’s case number and the date of the order or judgment. The complaint must also attach a copy of the court’s order or judgment finding a first violation.
(c) Nature of Proceedings. The action must be denominated as a civil action and assigned a specific subcategory code for case tracking purposes. It must be heard and decided by the court sitting without a jury, except as otherwise permitted under Rule 39(c).
(d) Venue. Venue is proper in any county in which the employee is or was employed by the employer.
(e) Expedited Proceedings. The court must expedite the proceedings.
(f) Scheduling Conference. At the same time the complaint is filed, the county attorney must file an application and submit a form of order requiring the court to set a date for a scheduling conference to determine the schedule for expedited proceedings. A copy of the signed order must be served on the employer and may be served with the complaint. At the scheduling conference, the court may address Rule 16(d) matters and may set such additional hearings as it deems necessary. On or before the date of the scheduling conference, the employer must file and serve a written disclosure identifying all business licenses that it holds in Arizona.
(g) Evidentiary Hearing; Summary Judgment. The court may not suspend or revoke a license without first affording the parties the opportunity for an evidentiary hearing, unless all parties waive the hearing. Rule 56 does not apply to these proceedings unless all parties agree.
(h) Standard of Proof. The court must determine all required factual issues by a preponderance of the evidence.
(i) Applicability of Rules of Evidence. Except as provided in A.R.S. § 23-212(H) and § 23-212.01(H), the Arizona Rules of Evidence apply to these proceedings.
(j) Enforcement of Court Orders.

(1)Application for Order to Show Cause. After an order finding a first violation under A.R.S. § 23-212(F)(1) or § 23-212.01(F)(1), if the employer fails to file a timely sworn affidavit required by A.R.S. § 23-212(F)(1)(c) or § 23-212.01(F)(1)(d), the county attorney must file an application for an order to show cause why the employer’s licenses with the appropriate licensing agencies should not be suspended beyond any period prescribed in any prior court order. The application must be accompanied by an affidavit or other proof demonstrating that the employer failed to file the required sworn affidavit and must set forth the appropriate licensing agency’s identity and address, including the identity and mailing address of the agency official authorized to accept service under this rule.
(2)Opposition. Within 5 days after service of an order to show cause application, the employer may file an opposition to the relief sought in the application and to any further license suspension on the ground that it has filed an affidavit meeting the requirements of A.R.S. § 23-212(F)(1)(c) or § 23-212.01(F)(1)(d). If an opposition is timely filed, the court must hold a hearing and may not order any further license suspension until it renders its decision on whether to grant the relief sought in the application. If no opposition is timely filed or if the court grants the relief sought in the application, the court must order the appropriate licensing agencies to suspend indefinitely all applicable licenses held by the employer.
(3)Relief from License Suspension. After the entry of an order suspending a license for a first violation for failure to file a required sworn affidavit, the employer may, on motion or stipulation, seek relief from the order on the ground that the employer has filed a sworn affidavit required by A.R.S § 23-212(F)(1)(c) or § 23-212.01(F)(1)(d). If such a showing is made and subject to the completion of any term of license suspension ordered under A.R.S. § 23-212(F)(1)(d) or § 23-212.01(F)(1)(c), the court must enter an order terminating any further license suspension.
(4)Distribution of Order. The clerk must distribute by any method authorized by Rule 80(e) a certified copy of any order suspending or revoking a license, or terminating a license suspension to the parties, the Arizona Attorney General, and any licensing agency ordered to suspend an employer’s license.
(k) Action for Second Violation. An action alleging a second violation under A.R.S. § 23-212(F)(2) or § 23-212.01(F)(2) must be filed and served as a new action.
(l) Requirement of Electronic or Facsimile Service. After a party has appeared in a proceeding brought under this rule, any papers served on that party by mail under Rule 5(c) also must be served at the same time by electronic mail or facsimile, or as agreed to by the parties, or ordered by the court. If the party on whom service is to be made does not have access to electronic mail or facsimile, then service must be made as otherwise provided in Rule 5(c).
(m) Fees. The court must assess such fees as may be prescribed under A.R.S. §§ 12-284, 12-284.01, and 12-284.02.

Ariz. R. Civ. P. 65.2

Amended effective January 1, 2017.