Rule 302 Applicability of State Law in Civil Actions and Proceedings

• Jurisdiction: Arizona

Federal Rule not adopted.

Comment

Rule 301 of the Federal Rules provides that a presumption imposes upon the party against whom it is directed the burden of production of evidence, but does not change the burden of proof. Rule 302 of the Federal Rules provides that state law on presumptions controls in certain aspects of the federal litigation. Rule 303, which the Federal Rules did not adopt, governed presumptions in criminal cases. Arizona did not adopt any rules governing presumptions, which leaves presumptions a matter of case and statutory law.

Under Arizona law, there are two types of presumptions as determined by their basis: (1) those presumptions that have a factual basis; and (2) those presumptions that exist independent of any factual basis. Examples of the first are that a person absent for 5 years is presumed dead, and property acquired during a marriage is presumed to be community property; examples of the second are that everyone is presumed to have exercised due care, and everyone is presumed to know the law. Further, there are three types of presumptions as determined by their effect: (1) conclusive or irrebuttable presumptions; (2) presumptions affecting the burden of production of evidence; and (3) presumptions affecting the burden of proof. An example of the first is that everyone is presumed to know the law. The effect of this type of presumption is that evidence to the contrary is irrelevant. An example of the second is that a person absent for 5 years is presumed dead. The effect of this type of presumption is that, upon introduction of the factual predicate (that the person has been absent for 5 years), another fact is presumed (the person is dead), and the burden shifts to the other party to produce evidence to rebut the fact presumed. If, however, the other party introduces evidence to rebut the fact presumed (evidence that someone saw the person alive within the 5‑year period), the presumption disappears (the so-called "bursting-bubble" theory), and the plaintiff in the litigation has the burden of establishing the fact (that the person is dead) by the applicable standard of proof. An example of the third is that property acquired during a marriage is presumed to be community property. The effect of this type of presumption is that, upon introduction of evidence of the factual predicate (that the property was acquired during the marriage), another fact is presumed (the property is community property), and the burden shifts to the other party not only to produce evidence to rebut the fact presumed, but to prove that the presumed fact (the property is community property) is not true.

Presumptions therefore are not so much rules of evidence as they are rules of procedure that control the disposition of cases in the absence of evidence to rebut the presumption.

PRESUMPTIONS IN THE ARIZONA STATUTES

Title 3 Agriculture

Ch. 1 Agricultural Administration

Art. 2 Limitation on Nuisance Suits Against Agricultural Operations

Sec. 3-112(A) Agricultural operations presumed reasonable

Sec. 3-112(B) Agricultural operations presumed good agricultural practice

Art. 4 State Agricultural Laboratory

Sec. 3-149 Test results prima facie evidence of facts stated in results

Ch. 2 Regulatory Provisions

Art. 6 Pesticide Control

Sec. 3-365(E) Buffer zones-presumption of compliance

Sec. 3-367.01(C) Failure to report damage prima facie evidence of no loss from pesticide

Sec. 3-367.02(C) Failure of beekeeper to report damage prima facie evidence of no loss from pesticide

Sec. 3-368(F) Signed receipt prima facie evidence of receipt of citation

Ch. 4 Dairies and Dairying

Art. 1 General Provisions

Sec. 3-634(C) Manufacture or disposal of greater quantity than purchased or otherwise acquired prima facie evidence of violation

Ch. 5 Regulation of Eggs and Egg Products

Art. 1 General Provisions

Sec. 3-712 Sample of eggs prima facie evidence of condition of entire lot

Sec. 3-713 Possession of eggs creates presumption eggs are for sale

Ch. 11 Ownership, Control, and Regulation of Livestock

Art. 3 Brands and Marks

Sec. 3-1261 Brands issued under this subsection not prima facie evidence of ownership outside feedlot

Sec. 3-1267(A) Certified copy of entry in brand book prima facie evidence of all facts required to be entered in brand

Sec. 3-1267(B) Brand as prima facie evidence of ownership

Art. 4 Dominion Over Animals

Sec. 3-1300(C) Overstocking prima facie evidence of intent livestock will leave land and graze on land of another person

Sec. 3-1306 Converted or changed brand prima facie evidence claimant obliterated, disfigured, or changed prior recorded brand

Sec. 3-1308 Possession of livestock without bill of sale prima facie evidence possession is illegal

Ch. 12 Livestock Injury and Diseases

Art. 1 Duties and Liabilities of Railroads

Sec. 3-1704(A) Killing of animals with locomotive or cars prima facie evidence of negligence

Ch. 15 Animal and Bird Feeds

Art. 1 Commercial and Customer-Formula Feeds

Sec. 3-2616(C) Certified copy of official analysis prima facie evidence of com-position of feed

Ch. 17 Agricultural Safety

Art. 1 General Provisions

Sec. 3-3110(B) Signed receipt prima facie evidence of receipt of citation

Title 4 Alcoholic Beverages

Ch. 1 General Provisions

Art. 1 Definitions

Sec. 4-101(8) Control presumed if person has 10 percent or more of voting securities, voting rights, or liabilities

Ch. 3 Civil Liability of Licensees and Other Persons

Art. 2 Illegal Sales of Spirituous Liquor

Sec. 4-311(B) Presumption underage person consumed spirituous liquor sold to such person by licensee

Title 5 Amusements and Sports

Ch. 3 Boating and Watersports

Art. 5 Operation of Watercraft

Sec. 5-350(C) Prima facie evidence of reckless operation

Art. 10 Boating While Intoxicated

Sec. 5-395(E) Presumption of being under influence of intoxicating liquor

Sec. 5-395.02(A)(5) Periodic maintenance records prima facie evidence device was in proper operating condition

Ch. 4 Games of Bingo

Art. 1 General Provisions

Sec. 5-407(B) Expenses presumed not bona fide and reasonable

Title 6 Banks and Financial Institutions

Ch. 1 State Banking Department

Art. 3 Powers and Duties

Sec. 6-129(D) Official report prima facie evidence of facts stated therein

Ch. 3 Saving and Loan Associations

Art. 7 Voluntary Liquidations

Sec. 6-471(B) Association records prima facie evidence of claim or interest

Ch. 4 Credit Unions

Art. 2 Credit Union Conversions

Sec. 6-588(A)(3) Filing certificate presumptive proof of holding meeting

Ch. 5 Consumer Loans

Art. 1 In General

Sec. 6-602(A) Person who advertises presumed to engage in business of making consumer loan

Sec. 6-604.01(E) Certified copy of license prima facie evidence of issuance of license

Ch. 12 Transmitters of Money

Art. 1 Licenses and Regulations

Sec. 6-1202(A) Unlicensed person presumed to engaged in business regulated by chapter

Ch. 13 Advance Fee Loan Brokers

Art. 1 General Provisions

Sec. 6-1302(A) Person who advertises presumed to engage in business of advance fee loan broker

Ch. 14 Premium Finance Companies

Art. 1 General Provisions

Sec. 6-1402(A) Person who advertises presumed to engage in business of premium finance company

Title 8 Children

Ch. 2 Juvenile Court

Art. 1 General Provisions

Sec. 8-201(1) Failure to maintain parental relationship for 6 months prima facie evidence of abandonment

Ch. 5 Child Welfare and Placement

Art. 2 Termination of Parent-Child Relationship

Sec. 8-531(1) Failure to maintain parental relationship for 6 months prima facie evidence of abandonment

Art. 3 Protective Services

Sec. 8-546(1) Failure to maintain parental relationship for 6 months prima facie evidence of abandonment

Title 9 Cities and Towns

Ch. 4 General Powers

Art. 8 Miscellaneous

Sec. 9-499(A) Recorded assessment of removal cost of rubbish, etc., prima facie evidence of truth of matters recited therein

Title 10 Corporations and Associations

Ch. 1 General Provisions

Art. 2 Filing and Document Fees

Sec. 10-125(D) Filing or refusing to file document does not create presumption document is valid or invalid or information is correct or incorrect

Ch. 8 Directors and Officers

Art. 3 Standards of Conduct

Sec. 10-830(D) Director presumed to have acted properly

Sec. 10-833(B) Director present at meeting presumed to have assented to un-lawful distributions

Art. 4 Officers

Sec. 10-842(D) Officer presumed to have acted properly

Ch. 15 Foreign Corporations

Art. 1 Grant of Authority

Sec. 10-1502(F) Court determination that corporation failed to qualify as foreign corporation prima facie evidence against corporation in any other action

Ch. 16 Records and Reports

Art. 3 Miscellaneous Provisions

Sec. 10-1635 Certified copies of document or certificate prima facie evidence of facts stated in document or certificate

Ch. 22 Nonprofit Corporations

Art. 1 Substantive Provisions

Sec. 10-2305(C)(1) Termination of action by no contest plea does not create presumption person acted or failed to act in bad faith

Art. 7 Involuntary Dissolution

Sec. 10-2451 Assets distributable to unknown or undiscoverable person presumed abandoned property

Art. 8 Foreign Corporations

Sec. 10-2488(D) Court determination that corporation failed to qualify as foreign corporation prima facie evidence against corporation in any other action

Art. 11 General Provisions

Sec. 10-2544 Certified copies of document or certificate prima facie evidence of facts stated in document or certificate

Ch. 23 Corporate Takeovers

Art. 1 In General

Sec. 10-2701(8) Control presumed if person has 10 percent or more of voting securities

Title 11 Counties

Ch. 2 Board of Supervisors

Art. 4 Powers and Duties

Sec. 11-268(D) Recorded assessment of removal cost of rubbish, etc., prima facie evidence of truth of matters recited therein

Ch. 3 County Officers

Art. 2 Sheriff

Sec. 11-441(A)(7) Return of service by sheriff prima facie evidence of facts stated in return

Ch. 10 Community Health System

Art. 2 Operations

Sec. 11-1432(C) Assets conveyed to nonprofit corporation presumed to have been...