July 1999 

New Legislation of Interest to Attorneys: Highlights

by Senator Mike Heavey

During the 1999 session of the legislature just concluded, the Judiciary Committee dealt with a vast array of bills affecting the Bar, including criminal law, family law, traffic and alcohol violations, corporations and business law, civil law, and other court-related issues. Despite a 49-49 tie in the House of Representatives, the Judiciary Committees in the House and Senate were able to enjoy a very productive year and enact legislation that will benefit the justice system of this state. We worked well with the co-chairs of the House Judiciary Committee, Dow Constantine and Mike Carrell, and co-chairs of the House Criminal Justice and Corrections Committee, Ida Ballisiotes and Al O’Brien.

This article focuses on Bar-related legislation that passed this year. The Judiciary Committee, however, is only one of 14 committees in the Senate. Depending on one’s area of expertise or interest, it might be beneficial to check the legislative website (http://www.leg.wa.gov/) for details about other bills or to obtain more specific information about the bills described below. In addition, the Judiciary staff can be contacted at 360-786-7462 or by writing to:

P.O. Box 40482
Olympia, WA 98504-0482

And, as in past years, a full description of all bills that passed the 1999 legislature can be obtained by ordering the Legislative Report. The Report will be available for approximately $10 (the price in pre-vious years) by contacting the Bill Room at the address above.

• Expands the eligibility for the Drug Offender Sentencing Alternative program and excludes drug offenders from the Work Ethic Camp.
• Allows persons with serious drug problems to petition the court for intensive drug treatment in custody and after they are released from custody.
• Specifically allows counties to create drug courts for offenders with limited records.

• Makes it a crime for anyone who, without authorization, produces or sells goods with counterfeit trademarks or who represents herself/himself as authorized by the company, if it is done for financial gain.
• Creates a graduated sentencing scheme based on the number of prior convictions for counterfeiting, the number of counterfeit items, or the aggregate retail value of the counterfeit items, ranging from a misdemeanor to a class C felony.
• Also creates a new class C felony for knowingly manufacturing, producing or distributing counterfeit items which endanger the health or safety of others.

• The statutory definition of criminal harassment includes a person who, by words or conduct, places another person in reasonable fear that the threat will be carried out. "Words or conduct" includes the sending of an electronic communication.
• The definition of "contact" in criminal stalking includes the sending of an electronic communication.
• For the purpose of obtaining an anti-harassment protection order due to a course of conduct, "course of conduct" includes the sending of an electronic communication.

• Adds two additional members, frontline law enforcement officers, to the Criminal Justice Training Commission.

• Allows the state to prosecute a defendant (e.g., for DUI) who has already received administrative or non-judicial punishment from another sovereign (e.g., military).

• Law enforcement may impound the vehicle of a person arrested for patronizing a prostitute (or juvenile prostitute) if the vehicle was used in committing the crime, if the arrested person is the owner of the vehicle, and if the person has been previously convicted of the same crime.

• Various criminal statutes are revised by the Code Reviser to correct technical defects.

• When a respondent is ordered to participate in batterers’ treatment, it is clarified that this means a domestic-violence perpetrator treatment program approved by DSHS.
• The Department’s standards for approval of domestic-violence perpetrator treatment programs must include a requirement that, if the perpetrator or the victim has a minor child, treatment will include education on the effects of domestic violence on children.
• If either the offender or the victim of domestic violence has a minor child, the court may order the offender to participate in an approved domestic-violence perpetrator treatment program as part of any term of community supervision.

• The criminal jurisdiction of Washington state is extended to any crime committed aboard an airplane, train, boat, or other conveyance while that conveyance is within Washington state if the conveyance has to land, dock or stop within the state.

• The defense of duress is not available in prosecutions for homicide by abuse.

• The statute that makes it a felony to assault a transit driver who is performing official duties is expanded to cover assaults against transit mechanics, transit security officers and the immediate supervisor of a transit driver, if such persons are performing official duties at the time of the assault.

• Makes technical corrections in the sentencing laws to clear up inconsistencies as a result of prior amendments with unintended consequences.
• Ranked felonies that were previously unranked on the sentencing grid, seriousness level.

This was requested legislation from the Sentencing Guidelines Commission.

• Allows the court to justify giving an aggravated sentence when an adult has developed a relationship with a homeless teen for the purposes of victimization.

• It is a class C felony to knowingly and maliciously discharge a laser at:
• a law-enforcement officer in his/her official duties and create the reasonable belief that the officer is being targeted by a laser-siting device;
• a law-enforcement officer, airplane pilot, firefighter, or public or private transit- or school-bus driver and impair their ability to deliver services or impair the safety of their vehicle.
• It is a gross misdemeanor to knowingly and maliciously discharge a laser at:
• anyone not named in the felony section and impair their ability to operate a vehicle;
• anyone named in the felony section, causing a substantial risk of impairment;
• a person to threaten or intimidate.

The first offense by a juvenile is a civil infraction resulting in a fine of not more than $100.

• A procedure for the filing and enforcement of foreign protection orders is created.
• The order must be issued by a court of another state, United States territory or possession, a military tribunal, or a tribal court in a civil or criminal action.
• It is a gross misdemeanor for a person under restraint to violate the foreign protection order or restraining order.
• Violation of a foreign protection order is a class C felony under circumstances specified in the bill.
• The person entitled to protection must divulge other orders between the parties, and disputes dealing with custody of children or visitation are to be resolved judicially.
• A peace officer is not to remove a child from his or her current placement unless a writ of habeas corpus is produced or the child would be injured or could not be taken into custody if it were necessary to first obtain a court order.

• Creates the new crimes of Custodial Sexual Misconduct in the First and Second Degree.
• Makes it illegal for a correctional officer, jail guard or other law-enforcement officer to have intercourse or sexual contact with a prisoner or other person under their custody or under arrest.
• First degree requires intercourse and is a class C felony.
• Second degree requires sexual contact and is a gross misdemeanor.
• Consent of the victim is not a defense, but sex by forcible compulsion is a defense.

• Creates a single system of supervising offenders in the community and expands number of offenders sentenced to community supervision.
• Both the Court and the Department of Corrections (DOC) can set affirmative conditions of supervision, including treatment.
• Gives DOC tools to monitor and enforce conditions and sanction violators.
• Requires sex-offender treatment providers to be certified by the Department of Health.

• Allows criminal charges to be disseminated as non-conviction data in the same manner as arrest information.

• All but two sections of the anarchy and sabotage statutes are repealed.
• Two sections of the anarchy and sabotage statute are amended to define the crimes of assembling to commit criminal sabotage and committing criminal sabotage.

• A court may order a minor modification in the residential schedule of a parenting plan when it does not change the primary residence of the child and the modification does not result in more than 90 overnights per year in total.
• If the nonprimary residential parent voluntarily fails to exercise residential time for an extended period, the court may make adjustments to the parenting plan.

• A law-enforcement officer is prohibited from participating as an investigator of alleged abuse or neglect concerning a child for whom the officer is, or has been, a parent, guardian or foster parent.

• Various provisions are created to guide investigators from DSHS, law-enforcement, prosecution, and local advocacy groups who investigate and/or interview child victims of alleged sexual abuse. Law-enforcement, prosecution, and Child Protective Services workers are provided with ongoing specialized training in interviewing child victims of sexual abuse.
• The Washington State Institute for Public Policy must convene a work group to develop state guidelines for child sexual abuse investigations protocols.
• Three pilot projects using different methods to conduct and preserve interviews with alleged child victims of sexual abuse are to be established by DSHS.

• Courts may waive otherwise mandatory electronic home monitoring in DUI cases if the offender has no dwelling or phone, or the offender resides outside the state, or there is reason to believe the offender will violate the terms of the monitoring.
• Whenever a court waives the monitoring, it must impose an alternative sentence with similar punitive consequences. Alternatives include jail time, work crew or work camp.
• If the total of jail time and electronic monitoring would exceed one year, the jail time is to be served first and the monitoring (or alternative) is to be reduced so the combination does not exceed one year.

• Persons whose driver’s licenses have been administratively suspended due to failure to pay a traffic ticket, violation of financial responsibility laws, or multiple infractions within a specified period may apply for an occupational driver’s license.
• In order to qualify for an occupational driver’s license a person must be in one of the following programs where a driver’s license is required: (1) a member or an applicant for an apprenticeship program or an on-the-job training program; (2) a program that assists persons who are on welfare to become employed; or (3) undergoing substance-abuse treatment or participating in a 12-step program such as Alcoholics Anonymous.
• The Department of Licencing is prohibited from issuing an occupational driver’s license to persons participating in substance-abuse programs or 12-step programs who have access to transit services.

• Local courts may waive the requirement that persons arrested for DUI appear within one judicial day following arrest if these persons are required to appear at the earliest practicable day following arrest. Each court is to identify, by rule, the method for setting the earliest practicable day.

• The statutes that deal generally with district and municipal court jurisdiction over criminal defendants are made to explicitly reflect the five-year jurisdiction granted in the 1998 DUI law changes and the enforcement of ignition interlock orders is exempt from the jurisdictional time restrictions.

• Courts are allowed to electronically transfer traffic-offense disposition information to the DOL.
• Requirement that speed and speed-zone information be recorded and printed on hearing notice forms is removed.
• Courts can simultaneously generate and issue the failure to appear notice with the warrant of arrest whenever the person violates his or her written promise to appear in court.

• Keg registration violations and furnishing kegs to minors are gross misdemeanors.
• Consuming liquor in public is a class 3 infraction punishable by a fine of up to $50. The violation of selling liquor to a minor, RCW 66.44.320, is repealed due to the fact it is addressed in another section of law which makes a similar violation a gross misdemeanor.

• Prior DUI-related convictions are not considered when computing the offender score for a current offense of vehicular homicide while under the influence, but a two-year sentence enhancement is added for each prior DUI-related offense.
• In cases where a person is convicted of DUI with a blood alcohol content (BAC) of .15 or more, the DUI is the person’s second or subsequent DUI, or the person refused the Breathalyzer test, the court must order the person to drive only a vehicle equipped with an ignition interlock device.
• As a condition of granting a DUI-related deferred prosecution, the court must order installation of an interlock device when the DUI involved a BAC of .15 or higher, the person refused the Breathalyzer test, or it is the person’s second or subsequent DUI.

• The Department of Licensing may waive the required $100 fee if the person requesting a hearing regarding administrative license suspension or revocation is an indigent as defined by law.

• A district court must transfer an action or proceeding relating to a civil anti-harassment protection order to the superior court when the respondent is under 18 years of age.

• All public works contract disputes are subject to the offer-of-settlement and prevailing-party attorney fees law, regardless of the dollar amount of the alleged damages.
• The current dollar limit of $250,000 is deleted from the statute.

• State and local agencies, plus private and public gas and electrical utilities, are severally liable (not jointly) for damage relating to Y2K problems.
• The state and local agencies are also immune from liability for the first $100 of damages per claimant.

• An individual has an affirmative defense in any court action if he or she defaults on a contract because of a Y2K problem.
• Insurance coverage is reinstated with full coverage, with no penalties or interest, if a person can demonstrate that payment was not made because of Y2K and payment is ultimately made in a timely fashion.
• No interest or penalties if employer can- not pay L&I premium because of a Y2K problem and payment is ultimately made in a timely fashion. "Employer" means only an individual or a business entity with 50 or fewer employees.
• No interest of penalties if a person can- not pay real or personal property taxes or state excise taxes because of a Y2K problem and payment is ultimately made in a timely fashion. "Person" means only an individual or a business entity with 50 or fewer employees.
• Person asserting the Y2K problem must not be the cause of the problem.
• The bill does not apply to injuries or death caused by Y2K.

• Members and managers of limited liability companies whose positions are similar to those of certain high-level partnership or corporation positions are excluded from mandatory industrial insurance coverage.

• Electric utilities are granted immunity from liability for damages when their workers cut vegetation that has damaged their facilities, or that poses an imminent hazard or potential threat to damage.
• The terms "imminent hazard" and "potential threat" are defined and these conditions must be determined by a certified arborist or qualified forester.
• Provisions regarding notice to landowners is detailed for those situations where the vegetation has already come in contact with electric facilities, for those that pose an imminent hazard, and for those that present a potential threat.

• The Trust and Estate Dispute Resolution Act (TEDRA) is created to centralize all procedures for resolving disputes that occur regarding trusts and estates.
• The common-law doctrine of "virtual representation," which allows a member of a class to an inheritance (e.g., a grandchild) to determine the rights of all members of the class, is adopted.

• A written disclaimer of interest in an estate does not have to refer to specific statutory language in order to avoid tax consequences.
• Unless otherwise designated within the disclaimer, the minimum requirements of the IRS Tax Code are presumed to be met.
• Applies retroactively to all disclaimers made after the date of the change in the IRS Tax Code.

• Technical correction that deletes the word "unified" from the term "unified credit" as that term is used in the marital deduction survivorship sections of the law.
• Harmonizes state law with the terminology of the federal tax code.

• Provides immunity to persons who communicate a complaint or information to any self-regulatory organization that regulates persons involved in the securities or futures business and that has been delegated authority by a federal, state or local agency.

• When a person attempts to collect on a debt by executing on homestead property, the net value of a homestead is calculated at the time the judgment is executed.
• All liens and encumbrances are included in the calculation except that of the specific judgment being executed upon, and all encumbrances junior to that judgment, are excluded from the calculation.
• The amount of the homestead exemption is increased from $30,000 to $40,000.

• Various forms of retirement savings (including Roth IRAs, tax-sheltered annuities, etc.) are exempt from legal process, such as garnishment.
• Language is added conforming the act to the numerical changes of the IRS Tax Code and to the alternate dispute resolution provisions that are required with disputes of wills or trusts.

• In addition to existing mechanisms, nonprofit corporations are also authorized to remove a director by filing suit in superior court.
• The court will remove a director if it finds that the director engaged in dishonest conduct with regard to the nonprofit and that removal is in the best interest of the nonprofit.

Proceedings.

• Raises to $750 the current $200 limit on reimbursement to landowners for an independent appraisal and other expenditures in eminent domain proceedings.

• County clerks are required to include the legal description of any real property awarded in a judgment in the judgment summary.
• Clerks are also required to place a clear statement in the judgment summary that the Department of Licensing must be notified, as required by the financial responsibility law, if the judgment provides for damages from a motor vehicle accident.

• Seals are no longer required on process issued by district and municipal courts.
• The Washington State Supreme Court may determine by rule which process must be stamped with a seal.
• Legal process issued by municipal courts in cities under 400,000 population runs throughout the state.

• Whenever it appears that the incapacitated person or incapacitated person’s estate could benefit from mediation and such mediation would likely result in overall reduced costs to the estate, the court may order the parties subject to its jurisdiction into mediation.
• The court must establish the terms for the mediation and allocate the costs of the mediation among the parties and the estate of the incapacitated person as justice requires.

• The Administrator for the Courts (OAC) is directed to conduct a unified family court pilot project, and the sites for the pilot will be established in no more than three superior court judicial districts with authority for at least five judges.
• OAC will study the pilot program measuring improvements in the judicial system’s response to family involvement in the judicial system.

• The fee for requesting a jury of six in a civil trial in superior court is increased from $50 to $125 and if the demand is for a jury of 12, the fee is increased from $100 to $250.
• Counties are given the authority to impose a fee not to exceed $250 for filing a request for a trial de novo of an arbitration award.

• Asks the federal government and the Immigration and Naturalization Service to review policies and laws that have allowed the INS much greater power to detain and deport suspected illegal aliens and that have curtailed the due process rights of all aliens, illegal or legal.

• The number of superior court judges in Okanogan County is increased from one to two. The number of superior court judges in Grant County is increased from two to three.
• The new positions take effect only upon approval by the legislative authority in each county. The additional judicial position in Okanogan County is effective only if the county agrees to pay the expenses of existing judicial positions as provided in state law.

• An additional judicial position is authorized for Division II of the Court of Appeals. The judgeship is added to Division I, Pierce County.

(HB 1869)

• Judges with the Environmental Hearings Office can be terminated or disciplined only for cause.
• Judges who are disciplined or terminated for cause may request a written reason for the action.
• The written decision may be appealed to the superior court of Thurston County.

• Within two weeks or the release of the state Supreme Court’s decision on the discipline of Judge Grant Anderson, or no later than December 10, 1999, the House and Senate Committees on Judiciary are to schedule a meeting to review the matter.

• Persons at least 12 and not more than 21 years of age must be detained up to 72 hours if they have been arrested for illegally possessing a firearm on school premises.
• Except for probable cause and bail, courts may not release the persons until they have been examined by the county-designated mental health professional (CDMHP) and, if recommended by the CDMHP, a chemical-dependency specialist.
• School officials must search a student’s locker if they reasonably believe the student is illegally possessing a firearm on campus.

Senator Mike Heavey is a Washington state Senator, representing the 34th Legislative District (West Seattle, Burien and Vashon Island).

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