July 2001

New Legislation of Interest to Attorneys: 2001 Highlights 

by Senator Adam Kline
Chair, Senate Judiciary Committee, and 
Senator Stephen L. Johnson
Member Senate Judiciary Committee, Republican Deputy Leader

The February 28 earthquake left the Capitol Dome and nearby office buildings shaken, but it solidified legislative efforts to address important legal issues in a bipartisan fashion. For over two months, the 2001 Regular Legislative Session was conducted from very cramped, temporary quarters in the Cherberg and O'Brien buildings. While this made the jobs of legislators, staff, lobbyists and the public a little more difficult, it clearly fostered a spirit of camaraderie.

The Senate Judiciary Committee worked well with the House Criminal Justice and Corrections and House Judiciary committees to conclude a productive session that resulted in a wide variety of bills that should be of interest to the Bar. Subjects included criminal, family, traffic, business, civil and probate laws, as well as other court-related issues. Law students are likely to celebrate simplification of the rule against perpetuities.

This article focuses primarily on legislation considered by the Senate Judiciary Committee and passed by the Legislature. Because the Senate Judiciary Committee is but one of 14 standing committees in the Senate, it may be beneficial to check the legislative Web site (http://www.leg.wa.gov/) for bills that passed through other committees, or to obtain more detailed information on any bill that was considered by the Legislature. All bills described in this article will be effective July 22, 2001, unless otherwise noted in the description. The Senate Judiciary Committee staff can be contacted at 360-786-7462 or PO Box 40466, Olympia, WA 98504-0466.

As in past years, a full description of all bills that passed the 2001 Legislature can be obtained by ordering the 2001 Final Legislative Report, available for approximately $10, by contacting the Legislative Information Center at 360-786-7573 or PO Box 40482, Olympia, WA 98504-0482.

Prime sponsor: Senator McCaslin

(similar bill: SHB 1039, Representative Ballasiotes)

• Under the persistent offender "two strikes, you're out" law, all federal, out-of-state, and prior Washington convictions for sex offenses are considered as "strikes" if they are comparable to those offenses currently listed as "strike" offenses.

SSB 5015: Modifying the definition of "border area"

Prime sponsor: Senator Morton

•  A percentage of the excess funds in the liquor revolving fund is distributed to "border areas" according to a specific formula to fight border-related crime.

•  The definition of "border area" is expanded to include any unincorporated area within seven miles of the Washington-Canadian border.

Prime sponsor: Senator Franklin

•  It is a gross misdemeanor to sell at retail more than three packages of products containing ephedrine compounds or a single package containing more than three grams in a single transaction.

•  It is a gross misdemeanor to purchase more than three packages of products containing ephedrine compounds or a single package containing more than three grams in a 24-hour period.

•  It is a gross misdemeanor to possess more than 15 grams of ephedrine compounds, except for pharmacists, practitioners, manufacturers, wholesalers, retailers or shippers, or unless the compounds are stored in a home or residence under circumstances consistent with legitimate uses.

•  Local ordinances not consistent with this law are pre-empted, but local governments may act against a violator's local business license.

Prime sponsor: Senator Prentice

• Businesses that have information relating to identity theft must provide, upon written request of the victim, copies of all information relevant to the identity theft. If businesses do not provide information to victims, they may be in violation of the Consumer Protection Act.

•  A collection agency may not initiate oral contact with a debtor more than one time in 180 days in order to collect on debts created because of an identity theft. The Consumer Protection Act applicable to current collection-agency prohibited practices applies.

•  Section 5, regarding prohibited practices by collection agencies, will take effect April 1, 2004.

SSB 5896: Providing for additional DNA testing of evidence

Prime sponsor: Senator Constantine

(similar bill: SHB 1889, Representative Lovick)

•  On or before December 31, 2004, a convicted felon who is currently imprisoned may submit a request for post-conviction DNA testing to the prosecutor of the county where the conviction was obtained.

•  If it is determined that testing should occur, and the evidence still exists, the prosecutor must request testing by the Washington State Patrol crime lab. A person denied a request for DNA testing may appeal to the Office of the Attorney General.

•  After January 1, 2005, DNA issues must be raised at trial or on appeal.

ESSB 5942: Increasing penalties for crimes against dog guides and service animals

Prime sponsor: Senator McAuliffe

•  Criminal penalties are established for interference with the use of a dog guide or service animal, and for causing the injury or death of a dog guide or service animal.

•  It is theft in the first degree to wrongfully obtain or exert unauthorized control over a dog guide or service animal.

•  A person will be ordered to make full restitution for all damages incurred by the dog guide or service animal user and the dog guide or service animal when convicted of a violation of any of the above offenses.

ESSB 5970: Revising provisions for probation orders

Prime sponsor: Senator Hargrove

•  When a defendant who has been given a suspended or deferred sentence fails to appear as directed in district or municipal court, the defendant's probationary period stops running and does not start until the defendant can be found and brought before the court.

SHB 1091: Changing sexual misconduct laws with regard to school employees

Prime sponsors: Representatives Lambert and Sommers

(veto message: full veto, 5/15/01)

•  New alternative methods of committing sexual misconduct offenses are: (1) sexual misconduct in the first degree, which occurs when there is sexual intercourse between a school employee and a student over 16 years of age who is not married to the employee; and (2) sexual misconduct in the second degree, which occurs when there is sexual contact between an employee and a student over 16 years of age who is not married to the employee.

•  These new alternative methods of committing sexual misconduct offenses do not require proof that a perpetrator who was a school employee had direct supervisory authority over the victim or abused a supervisory position.

Prime sponsor: Representative Hurst

(similar bill: SSB 5323, Senator Kline)

•  Persons convicted of some misdemeanor or gross misdemeanor offenses can have one conviction vacated under certain conditions if at least three years have passed since completion of the terms of sentence.

•  Persons convicted of domestic-violence offenses which constitute misdemeanors or gross misdemeanors can have one conviction vacated under certain conditions if at least five years have passed since completion of the terms of sentence, and if the applicant has not had a prior domestic-violence conviction.

•  Convictions of sex offenses or motor-vehicle offenses involving drug or alcohol use can never be vacated.

•  Once a conviction is vacated it cannot be used as criminal history, and the applicant is allowed to state for all purposes, including housing and employment applications, that he or she has not been convicted of that crime.

HB 1227: Changing provisions relating to escaping from custody

Prime sponsor: Representative Ballasiotes

•  Under current common law, persons act with knowledge when they are aware that their acts could result in a criminal offense.

•  A knowledge element is codified for the crimes of escape and bail jumping, and provides an affirmative defense when uncontrollable circumstances exist.

• The act modifies the process under the Uniform Criminal Extradition Act for parole, probation or bail violations.

•  This act is effective July 1, 2001.

Prime sponsor: Representative Esser

(similar bill: SB 5955, Senator Constantine)

•  A person who refuses to pay or evades payment for motor vehicle fuel that is pumped into a motor vehicle is guilty of theft of motor vehicle fuel, a gross misdemeanor.

• The license, permit or nonresident driving privilege of a person convicted of theft of motor vehicle fuel must be suspended by the court for a period of up to six months.

Prime sponsor: Senator Johnson

•  The Trust and Estate Resolution Act is modified to make various clarifications and technical corrections to the act.

•  The process for appointing a qualified and independent person as a special representative to represent the interest of minors, unknown persons or incompetents is clarified.

• The process for filing an arbitrator's decision, notice to parties, and appeal procedures to superior court are set forth.

•  If a nonjudicial binding agreement has been entered into, and a special representative has also been appointed, the agreement may not be filed with a court for 30 days without the consent of the special representative.

HB 1361: Simplifying excise tax application and administration

Prime sponsor: Representative Jackley

•  Provisions of the state's Probate and Trust Code (Title 11 RCW) are updated to ensure that all references to the federal Internal Revenue Code signify the IRS Code as amended on January 1, 2001.

•  This section of the bill is effective July 1, 2001.

Prime sponsor: Representative Haigh

(veto message: technical only)

• A new chapter under the probate and trust title is created to legally recognize trusts for the care of one or more animals. "Animal" means a nonhuman animal with vertebrae.

• The specific duties and obligations of the trustee are set forth.

•  This act will take effect October 1, 2001.

Prime sponsor: Senator Johnson

(veto message: full veto, 5/14/01)

•  Currently, state statutes provide that certain personal properties (subject to dollar limitations) are exempt from legal process such as attachment and garnishment. This bill increases the dollar limitations for such properties as motor vehicles, household goods, cash and securities.

•  Additional exemptions are created for child support, professionally prescribed health aids, personal injury awards, and loss of future earnings.

SB 5331: Modifying collection of business-to-business debts by collection agencies

Prime sponsor: Senator Kline

(similar bill: HB 1126, Representative O'Brien)

•  In the case of commercial claims, a collection agency may attempt to collect collection costs and fees authorized by written agreement between the debtor and creditor, as long as the total collection costs charged do not exceed 35 percent of the amount of the original claim.

Prime sponsor: Senator Johnson

•  The rule against perpetuities is modified to set a specific time limit within which transfers of property by trust and certain other methods must become distributable or vest.

•  The time limit is changed from "21 years after any life, whether in being or conceived" to 150 years after the effective date of the trust or distribution document.

SSB 5255: Exempting certain information on criminal acts from public disclosure

Prime sponsor: Senator

(similar bill: SHB 1187, Representative Haigh)

•  Those portions of records of public agencies containing specific vulnerability assessments or response plans intended to prevent criminal acts of terrorism are exempt from public inspection and copying if the public release has a substantial likelihood of threatening public safety.

Prime sponsor: Representative O'Brien

(similar bill: SB 5180, Senator Costa)

•  As a condition of continuing employment, all Washington peace officers must obtain and retain certification as peace officers from the Criminal Justice Training Commission (CJTC).

• If a peace officer was convicted of a felony before being employed as a peace officer and the circumstances of the conviction were fully disclosed to his or her employer before being hired, the CJTC may revoke certification only with the agreement of the employing law-enforcement agency.

•  This act will take effect January 1, 2002.

Prime sponsor: Representative Lantz

•  The power-of-attorney statute is updated and modernized. The authority of a person and the instances in which they have a power of attorney are specified. The statute clarifies the circumstances where a third party can rely on a power of attorney, and sets forth procedures to resolve disputes in court.

Prime sponsor: Representative Lambert

• Training for the investigation of sudden unexplained deaths of children under the age of three is required for city and county law enforcement officers and emergency medical personnel certified by the Department of Health.

•  The Forensic Investigation Council (FIC) must develop a protocol for autopsies of children under the age of three whose deaths are sudden and unexplained. Pathologists who are not certified forensic pathologists and who are providing autopsy services to coroners and medical examiners must use the FIC protocol.

•  A county is reimbursed for autopsies of children under the age of three when the deaths were sudden and unexplained if the death-scene investigations and autopsies were conducted under the protocols, and the autopsies were done at a facility designed for the performance of autopsies.

Prime sponsors: Representatives Lantz and Carrell

•  Each local government entity must appoint an agent to receive claims for damages. The identity of the agent must be recorded with the county auditor.

Prime sponsor: Representative Esser

•  The notice of hearing for anti-harassment orders must be the same whether it is personally served or served by publication.

•  If the respondent has been served with the temporary order and fails to appear at the hearing, the respondent need not be served with the final order as long as the terms have not changed and the temporary order was personally served.

Prime sponsor: Representative Schindler

(similar bill: SB 5697, Senator Roach)

•  The Washington State Patrol dental identification system is no longer required to delete dental records of persons who were reported as missing but were later found.

HB 1613: Providing a time limit for the transmittal of unidentified persons information

Prime sponsor: Representative Romero

(similar bill: SB 5698, Senator Patterson)

•  Within 30 days after an unidentified body is found, the county coroner or medical examiner must conduct a dental examination and must forward the results of that examination to the dental examination section of the Washington State Patrol.

Prime sponsor: Representative Lantz

•  A volunteer of a nonprofit organization or governmental entity is not personally liable for harm caused by an act or omission on behalf of the organization or entity if certain specified conditions are met.

•  The limitation on the personal liability of volunteers does not affect the nonprofit organization's or governmental entity's direct or vicarious liability for the harm caused by the volunteer, nor does it affect the ability of the organization or entity to bring a cause of action against the volunteer.

Prime sponsor: Representative Hatfield

• After July 1, 2003, fees for filing tax warrants for unpaid taxes or recovery of overpayments of benefits by any state agency will be raised to $20.

•  46 percent of the first $5 collected is directed to the Public Safety and Education Account.

Prime sponsor: Representative Dickerson (veto message: partial veto, 5/7/01)

•  A claimant who substantially prevails in a forfeiture proceeding to recover his or her seized property is entitled to reasonable attorney's fees.

• In all cases, the burden of proof is on the seizing agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture.

• A joint House and Senate workgroup is convened to evaluate Washington civil forfeiture laws and practices.

Prime sponsor: Senator Johnson

•  In both superior and district courts, a lawsuit involving a claim for injury to a person or property can be brought where the injury occurred, regardless of the cause of the injury.

•  In district courts, a civil action regarding unlawful issuance of checks or drafts can be brought either where the defendant resides or where the check was issued or presented as payment.

SB 5252: Expanding venue for local courts during emergencies and when the defendant appears electronically from a location outside the district

Prime sponsor: Senator McCaslin

•  In the event of a natural, civil or technological emergency, temporary venue in courts of limited jurisdiction matters may be had in a court district not impacted by the emergency.

•  Criminal actions for violations of local ordinances may be heard before the court of limited jurisdiction if the hearing takes place by electronic means approved by the Supreme Court.

Prime sponsor: Senator Gardner

•  The jurisdictional amount in small claims court is increased from $2,500 to $4,000.

Prime sponsor: Senator Johnson

(similar bill: HB 1264, Representatives Esser and Lantz)

•  The current requirement that a city may not re-establish a municipal court or department for a 10-year period if the city has elected to eliminate its municipal court services and contract with a district court for court services is repealed.

•  Any city that has contracted for court services with the county must notify the county legislative authority of its intent to terminate the agreement not less than one year prior to February 1 of the year in which all district court judges are subject to election.

•  A county that wishes to terminate an agreement with a city for court services must give the city written notice not less than one year prior to the expiration of the agreement.

Prime sponsor: Senator Kline

(similar bill: HB 1273, Representative Esser)

•  The process to appeal a decision of a small claims court to the superior court is modified.

•  Currently, superior courts conduct an entirely new trial proceeding when a case is appealed from small claims court. Under the provisions of this bill, appeals of small claims lawsuits to superior court are to be based on the record of the case in district court.

Prime sponsor: Senator Kline

(similar bill: HB 4205, Representatives Lantz and Carrell)

•  In addition to those persons currently authorized to be judges pro tempore in superior court, any sitting elected judge may serve as a judge pro tempore in superior court without the approval of the litigants, as provided by Supreme Court rule.

•  The rule must take into consideration assignments of judges pro tempore based on the experience of such judges, and must provide for the right, exercisable once during a case, to a change of a judge pro tempore.

•  The bill will be effective January 1, 2002 if approved by the voters at the general election in November 2001.

Prime sponsor: Representative Carrell

(similar bill: SB 5175, Senator Kline)

•  Restitution obligations ordered as a result of conviction in a court of limited jurisdiction may be enforced in the same manner as civil judgments without taking the order to superior court.

•  Restitution ordered by a court of limited jurisdiction may only be extended for an additional 10 years if the court finds that the offender has not made a good-faith attempt to pay.

•  Liens on real property entered pursuant to a district court judgment are filed, and satisfaction of the liens are entered, in the same manner as judgments of the superior court.

Enforcement Act

Prime sponsor: Senator Costa

•  The Uniform Child Custody Jurisdiction Act is replaced with the Uniform Child Custody Jurisdiction and Enforcement Act.

•  State law is made consistent with federal law for determining jurisdiction of interstate child-custody orders including giving jurisdictional priority to the child's home state.

•  A process is provided for enforcing other states' child-custody orders.

Prime sponsor: Senator Long

(similar bill: HB 1274, Representative Lantz)

•  A minor who is 16 years of age or older and a resident of the state may petition the superior court for a declaration of emancipation. This bill amends the statute governing the procedures for a minor to obtain a declaration of emancipation by clarifying that court commissioners, as well as judges, may hear such petitions.

Prime sponsor: Representative Ballasiotes

•  A parent may petition a court for a protection order restraining a person under the age of 18 from contact with his or her child only when the person to be restrained has been adjudicated of an offense against the child protected by the order, or is under or has been under investigation for such an offense.

•  The court may require the person restrained in the order to attend a different school from the person protected by the order. However, the court must also consider certain circumstances involved in requiring the person restrained in the order to attend another school.

Prime sponsor: Representative Lambert

(veto message: full veto, 5/11/01)

•  The Department of Social and Health Services (DSHS) is authorized to use the National Medical Support Notice to enforce a parent's obligation to provide health insurance for a dependent child.

•  Limitations are placed on the authority of DSHS to promulgate rules regarding this notice.

Prime sponsor: Representative Dickerson

(veto message: partial veto, 4/17/01)

•  All petitioners in dissolution, non-parental, family court, child support, parentage or child custody court actions must complete a confidential information form. The contents are specified.

•  Parties to administrative child support orders are also required to complete and update a confidential information form. The Division of Child Support adopts rules governing the collection of the data in these forms, as well as the collection of the children's confidential information.

•  This act will take effect October 1, 2001.

SSB 5558: Clarifying penalty procedures for alcohol violators

Prime sponsor: Senator Rossi

•  Courts are prohibited from suspending the requirement that a person drive only a vehicle equipped with an ignition interlock device when a driver is required by statute to have one.

Prime sponsor: Senator Kline

•  The crime of vehicular assault is committed by: (1) driving a vehicle in a reckless manner and causing substantial bodily harm to another; (2) driving a vehicle while under the influence of alcohol or any drug and causing substantial bodily harm to another; or (3) driving a vehicle with disregard for the safety of others and causing substantial bodily harm to another.

•  Vehicular assault by driving with disregard for the safety of others is ranked at seriousness level three for purposes of sentencing.

•  Vehicular assault is defined as a "most serious offense" when it is committed while under the influence of alcohol or any drug, or by driving in a reckless manner.

Prime sponsor: Representative Ballasiotes

• The Crime Victims' Compensation Program (CVCP) provides benefits to innocent victims of criminal acts. Vehicular assault is considered a "criminal act" for purposes of obtaining CVCP benefits if a conviction was obtained, if the defendant died while committing the vehicular assault, or is otherwise unable to stand trial because of a physical or mental infirmity.

•  In the case of injury caused by vehicular assault, if the perpetrator is unascertainable because he or she fled the scene of the accident (hit-and-run), CVCP may authorize benefits if it can establish by a preponderance of the evidence that a vehicular assault was committed.

Prime sponsor: Representative Hurst

(similar bill: SB 5557, Senator Kline)

•  Under the state's current implied consent law, every driver in the state has impliedly agreed to submit to a test of his or her breath or blood in order to determine the alcohol concentration or presence of any drug when lawfully stopped for driving under the influence (DUI).

•  The fact of a person's refusal to submit to a drug test under the implied consent law is now admissible in a criminal trial.

Prime sponsor: Representatives Simpson and Ballasiotes

•  The seriousness level of the crime of hit-and-run where death results is increased from level eight to level nine on the felony sentencing grid.

•  Hit and run resulting in death is punished at the same level as vehicular homicide involving intoxication. This statutory change will eliminate the incentive for persons who commit vehicular homicide to leave the scene in order to obtain a lesser sentence.

Prime sponsor: Representative Hurst

(similar bill: SB 5260, Senator Kline)

•  For any offense involving the use, consumption or possession of alcohol that is committed while driving, the court may order that an ignition interlock system be installed on any car the person is to drive.

•  This bill requires the Department of Licensing to attach or imprint a notation on a person's driving record who is restricted to driving only a motor vehicle that is equipped with an ignition interlock or other biological or technical device.

SHB 1649: Including striking the body of a deceased person within hit and run

Prime sponsor: Representative Kessler

•  A motorist who fails to stop after striking a person who is already deceased is guilty of a gross misdemeanor.

ESB 5053: Making corrections to Article 9A of the Uniform Commercial Code

Prime sponsor: Senator Constantine

•  Technical changes and corrections are made to the Uniform Commercial Code, Article 9, which deals with secured transactions. These corrections supplement the significant updates and changes which were enacted during the 2000 legislative session.

•  This act is effective July 1, 2001.

Prime sponsor: Representative Lantz

•  The Nonprofit Miscellaneous and Mutual Corporations Act is amended to allow directors to be indemnified by the corporation for negligent acts. Directors and officers are released from liability to the corporation and shareholders unless articles of incorporation provide otherwise. A standard of practice and care for officers and directors is specified.

•  Electronic participation at meetings is authorized. Consumer cooperatives are defined and have a lesser quorum requirement than other corporations governed by this act. The rights of the dissenting shareholders are restricted.

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