June 2002

New Legislation of Interest to Attorneys: 2002 Highlights

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

The Senate Judiciary Committee (one of 14 Senate committees) considered a diverse number of bills during the 2002 legislative session. Despite being hampered by a budgetary crisis, significant legislation was passed, including bills dealing with criminal, family, civil, and corporations and business law, and landlord-tenant issues. Cooperation with the House Judiciary Committee and the House Criminal Justice Committee was critical in ensuring the passage of many bills which will benefit our state's justice system.

This article focuses on Bar-related legislation considered by the Senate Judiciary Committee during the 2002 session. Space does not allow for a full discussion of the context of each bill; however, all bill reports, including any bills considered by the Legislature, can be accessed at the legislative Web site (http://www.leg.wa.gov). The reports usually provide information on why a bill was introduced, and who testified for and against it. 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 2002 Legislature can also be obtained by ordering the 2002 Final Legislative Report. The report is available for approximately $10 by calling the Legislative Information Center at 360-786-7573 or by writing to PO Box 40482, Olympia, WA 98504-0482.

ESB 6232: Revising crimes relating to possession of ammonia

•  All references to anhydrous ammonia relating to the theft and unlawful storage of anhydrous ammonia are changed to "pressurized ammonia gas" and "pressurized ammonia gas solution."

• Solid-waste haulers who unknowingly possess or transport pressurized ammonia gas or gas solution in the normal course of business are not guilty of the offense.

SSB 6233: Clarifying references to ephedrine, pseudoephedrine and ammonia

•  Possession of any of the following with the intent to manufacture methamphetamine is unlawful: (1) ephedrine or any of its salts or isomers, or salts of isomers; (2) pseudoephedrine or any of its salts or isomers, or salts of isomers; or (3) pressurized ammonia gas and gas solution.

SSB 6422: Defining "property of another" for purposes of crimes against property

•  For purposes of the arson, reckless burning, and malicious mischief chapter, the term "property of another" means property in which the actor possesses anything less than exclusive ownership.

ESSB 6490: Increasing penalties for taking a motor vehicle without permission

• The crime of taking a motor vehicle without permission is divided into two degrees.

• Taking a motor vehicle without permission in the second degree, a class-C felony and ranked at seriousness level II, is committed by taking a motor vehicle without permission or voluntarily riding in it with knowledge of the fact it was unlawfully taken.

• A person is guilty of taking a motor vehicle without permission in the first degree, a class-B felony and ranked at seriousness level V for adult offenders, if a person takes a motor vehicle without permission and does any of the following: (1) alters the vehicle in order to change its appearance or primary identification; (2) removes or participates in removing a part or parts from the vehicle; (3) exports or attempts to export the vehicle across state lines or out of the United States for profit; (4) intends to sell the motor vehicle; or (5) engages in a conspiracy where the object is the theft of motor vehicles for sale to others.

SSB 6602: Revising the crime of extortion in the second degree

•  In response to a recent appellate decision, the crime of extortion in the second degree is modified so that it occurs when a person commits extortion by means of a wrongful threat (rather than by any threat).

SSB 6635: Creating a notice and appeal process for animal-control authorities

•  The definition of "dangerous dog" is modified, and notice and appeal procedures are created for situations where an animal-control authority seeks to declare a dog to be dangerous. If a city or county already has procedures in place, they may continue to utilize them.

• The owner of a dog that causes severe injury or death of a human, whether or not the dog has been previously declared to be dangerous, is, upon conviction, guilty of a class-C felony. The state has the burden of showing that the owner of the dog either knew or should have known that the dog was potentially dangerous as defined in law.

•  An affirmative defense is created for the class-C felony of owning a dangerous dog that causes severe injury or death of a human. The defense is available if the person injured or killed trespassed on the defendant's property which was properly fenced and marked with warning signs, or provoked the dog on the defendant's fenced and marked property.

2SHB 1938: Making sabotage an aggravating circumstance

Prime sponsor: Representative Pearson (similar bill: SB 6205, Senator Rasmussen)

•  A sentence may be longer than the standard range if any offense is committed with the intent to injure, nullify, impair or obstruct the owner's or operator's management, operation or control of any structure used for horticultural or biological research, a health-care facility, or a public or private forestry research facility.

2SHB 2338: Revising sentences for drug offenses

Prime sponsor: Representative Kagi (similar bill: SB 6361, Senator Kline)

•  Manufacture, delivery or possession with intent to deliver heroin or cocaine is re-ranked at level VII on the sentencing grid instead of level VIII.

•  Prior drug offenses other than the manufacture of methamphetamine are scored as one point instead of three points when determining sentence length.

• Savings from the sentencing changes are used for substance-abuse treatment and drug courts.

•  A new drug-offense sentencing grid takes effect in 2004.

SHB 2379: Making it a crime to leave a child with a sex offender

•  It is a misdemeanor for a parent or person entrusted with the physical custody of a child to leave the child in the care or custody of another person who is not the parent, guardian or lawful custodian, while knowing that the person is a registered sex offender because of a prior sex offense against a child.

•  The defendant has an affirmative defense when the sex offender is allowed by court order to have unsupervised contact with the children.

SHB 2381: Addressing the trafficking of persons

Prime sponsor: Representative Veloria (similar bill: SSB 6407, Senator Costa)

•  The Washington State Task Force Against the Trafficking of Persons is created.

•  The task force must evaluate the progress of the state in trafficking prevention, make recommendations on methods to provide a system of assistance to victims of trafficking, and report to the governor and Legislature by November 30, 2002.

•  For purposes of the Washington State Crime Victims' Compensation Program, the definition of "criminal act" is expanded to include acts committed or attempted in this state that are punishable under federal law comparable to a felony or gross misdemeanor under Washington law.

SHB 2382: Revising provisions relating to criminal mistreatment

•  Criminal mistreatment in the fourth degree, a misdemeanor, is committed if a person negligently creates an imminent and substantial risk of bodily injury to a child or dependent person, or negligently causes bodily harm or extreme emotional distress to a child or dependent person, by withholding the basic necessities of life.

•  A parent charged with criminal mistreatment in the third or fourth degree may be eligible for deferred prosecution one time.

•  The deferred-prosecution provisions apply only to cases in which there is a child victim.

ESHB 2505: Providing criminal penalties for training in furtherance of civil disorders

Prime sponsor: Representative O'Brien (similar bill: SB 6451, Senator Kline)

• A new class-B felony is created for teaching or demonstrating the use of any device or technique capable of causing significant bodily injury or death to persons while knowing, having reason to know, or intending to employ the device or technique for civil-disorder purposes.

• A "civil disorder" means any public disturbance involving acts of violence that is intended to cause an immediate danger of, or to result in, significant injury to a person.

2SHB 2511: Making any robbery within a financial institution a first-degree robbery

• Robbery of a financial institution is classified as robbery in the first degree, whether it occurs with or without a firearm or deadly weapon.

HB 2605: Aggregating value for purposes of determining the degree of theft

Prime sponsor: Representative O'Brien (similar bill: SB 6606, Senator Kastama)

• A series of separate third-degree thefts may be aggregated for the purposes of determining the degree of theft if they are part of a criminal episode.

•  A "criminal episode" occurs if three or more thefts are committed by the same person from one or more mercantile establishments within a five-day period.

SHB 2610: Providing criminal penalties for endangerment of children and dependent persons with a controlled substance

Prime sponsor: Representative Darneille (similar bill: SB 6385, Senator Rasmussen)

•  The new crime of endangerment with a controlled substance is committed if a person knowingly or intentionally permits a child or dependent adult to be exposed to or have contact with: (1) methamphetamine; or (2) ephedrine, pseudoephedrine or anhydrous ammonia that is being used in the manufacture of methamphetamine.

• The offense is a class-B felony ranked at level IV on the sentencing grid.

•  The Washington State Patrol must disclose convictions for endangerment with a controlled substance during background checks for prospective employees or volunteers who may have unsupervised access to children or vulnerable adults.

SB 6242: Modifying the definition of nonprobate asset

• The definition of "nonprobate asset" is modified to recognize controlling federal law, and includes those rights and interests of a person having beneficial ownership of an asset that pass on the person's death under a written instrument other than the decedent's will.

•  Eligible written instruments may include a payable-on-death provision of a life-insurance policy, employee-benefit plan, annuity or similar contract, or individual retirement account, unless provided otherwise by controlling federal law.

SB 6484: Authorizing additional trust authority to take advantage of federal estate-tax benefits for conservation easements

Prime sponsor: Senator Haugen (similar bill: HB 2329, Representative Lantz)

•  A trustee may donate a conservation easement in order to qualify for federal estate tax exclusions or deductions if the trust instrument itself allows the donation or every affected beneficiary of the trust has agreed to the donation.

SB 6266: Updating creditor/debtor personal-property exemptions

Prime sponsor: Senator Johnson (similar bill: HB 2300, Representative Lantz)

• Current personal-property exemptions from legal process are increased for the following: (1) community household goods ($5,400); (2) "other personal property" ($2,000), including not more than $200 in cash and not more than $200 in accounts or securities; and (3) motor vehicles (two vehicles worth a total of $5,000).

• Exemptions are created for up to $16,150 for payments relating to personal bodily injury of the debtor, for payments of loss of future earnings, for child-support payments, and for professionally prescribed health aids.

SSB 6267: Revising the Washington Revised Uniform Principal and Income Act

• The Washington Revised Uniform Principal and Income Act of 1971 is modernized to incorporate commonly used methods of transferring property, establishing new rules, and changing outdated legal principles.

SB 5373: Changing mandatory arbitration of civil actions

• An offer of compromise procedure is provided for mandatory arbitration cases that are appealed to the superior court.

• The process provides that a nonappealing party may serve an appealing party with a written offer to settle the case. If the appealing party does not accept the offer, the amount of the offer becomes the basis for determining whether the party that demanded the trial de novo fails to improve his or her position on appeal for purposes of awarding reasonable attorneys' fees and costs under the court rules.

E2SSB 5827: Changing provisions relating to the enforcement of judgments

• Parties with judgments issued by any court may, at any time within 10 years of the judgment, have an execution issued for collection or enforcement of any judgment entered or filed in this state.

• Judgments from these courts may be extended for an additional 10 years upon application to the rendering or filing court.

• Any current legal owner or holder of a judgment may have the execution issued and may apply for an extension.

• Judgments are not enforceable beyond 20 years from the original date of entry, except for legal financial obligations and restitution in an adult or juvenile criminal case or for child-support obligations.

SB 6429: Regulating the admissibility of benevolent gestures in civil actions

Prime sponsor: Senator B. Sheldon (similar bill: HB 2354, Representative Alexander)

•  Statements, writings or benevolent gestures made to a person or the person's family that express sympathy or benevolence relating to the pain, suffering or death of the person involved in an accident are inadmissible as evidence in a civil action.

ESSB 6700: Limiting publication

of personal information of law enforcement and court employees

Prime sponsor: Senator Finkbeiner (similar bill: HB 2947, Representative Ahern)

• A person or organization who sells, trades, gives, publishes, distributes, or otherwise releases the residential address or telephone number, birthdate or Social Security number of any law-enforcement-related, corrections-officer-related, or court-related employee or volunteer can be civilly liable for actual damages, attorneys' fees and costs.

• A court may issue a permanent injunction against a person or organization engaged in the violation.

HB 1512: Including computer images in the definition of "visual or printed matter"

•  When a computer has been submitted privately or commercially for repair, modification or maintenance, and a person develops reasonable cause to believe the computer stores visual or printed matter that depicts a minor engaged in sexually explicit conduct, the person may report this to law enforcement and be immune from civil liability for making the report.

•  The definition of "photograph" in the child pornography statutes is expanded to include "digital images" and "tangible or intangible" items.

EHB 2655: Waiving filing fees and costs for certain protection orders

Prime sponsor: Representative Schual-Berke (similar bill: SB 6421, Senator Costa)

• The filing fee and service-of-process costs may be waived for an individual seeking an anti-harassment protection order against a stalker, sex offender or domestic abuser.

HB 2672: Limiting the liability of providers of treatment to high-risk offenders

• A licensed mental-health service provider or regional support network which treats a dangerous mentally ill offender is not civilly liable for injury caused by the client unless the provider's or network's act constituted: (1) gross negligence; (2) willful or wanton misconduct; or (3) a breach of the duty to warn.

SHB 2699: Providing immunity for communications with government agencies and self-regulatory organizations

Prime sponsor: Representative Lantz (similar bill: SB 6522, Senator Kline)

• A person who communicates a complaint to any branch of a federal, state or local government agency or certain self-regulatory organizations is provided immunity from civil liability for any claim relating to that communication.

• A prevailing defendant is entitled to expenses, reasonable attorneys' fees and statutory damages of $10,000, unless the complaint or information was communicated in bad faith.

SHB 2754: Modifying mandatory arbitration provisions

• Counties with a population of more than 150,000 must adopt mandatory arbitration. In counties with a population of less than 150,000, either the superior court judges or the county legislative authority may adopt mandatory arbitration.

•  The maximum fee that a county may assess for mandatory arbitration requests is increased from $120 to $220.

SB 6292: Authorizing lay judicial officers

•  A candidate for district or municipal court judge must be an attorney admitted to the practice of law in the state of Washington unless the candidate resides in a district or municipality with a population less than 5,000.

• In districts or cities with less than 5,000 population, a candidate is eligible to run for district or municipal court judge if the person has passed the qualifying examination for a lay judicial officer by January 1, 2003.

SB 6293: Hearing certain criminal actions by video or other electronic means

•  District and municipal courts have jurisdiction to conduct video or electronic hearings for criminal-statute violations if the defendant is located outside the court's geographic jurisdiction or boundaries.

SB 6401: Standardizing references to county clerks

• Where current law requires county clerks to keep certain information, references are standardized so that the information is entered into a "record" or in the form of a "record," rather than in a "journal" or "book."

• All owners of federally assisted housing must serve a written notice of the anticipated expiration or prepayment date on each tenant household, and on the clerk of the city or of the county legislative authority if in an unincorporated area.

SB 6417: Regarding the filing of wills in superior court

•  Wills filed with the clerk of the superior court must be noted by the clerk in a record of wills and may be withdrawn from the record only by order of the court.

SSB 6423: Clarifying how criminal history should be used in sentencing decisions

•  In response to Washington Supreme Court decision findings that the Legislature failed to explicitly command that the sentence provisions applicable on the date of the offense should be used during sentencing, prior convictions not counted in the offender score or included in the criminal history under repealed or previous versions of the Sentencing Reform Act (SRA) are included in a criminal history and are counted in the offender's score if the current version of the SRA requires their inclusion.

SB 6511: Authorizing any sitting elected judge to be a judge pro tempore

Prime sponsor: Senator Johnson (similar bill: HB 2647, Representative Lantz)

• Any sitting elected judge of the Washington Supreme Court, Court of Appeals, or a district or municipal court may serve as a judge pro tempore in superior court, as provided by Supreme Court rule.

SB 6596: Increasing the number of Spokane district court judges

• The number of district court judges in Spokane County is increased from nine to 10.

HB 2471: Changing the methodology of determining the number of district court judges

Prime sponsor: Representative Esser (similar bill: SB 6512, Senator Kline)

• The weighted-caseload analysis used by the Supreme Court to make recommendations regarding a change in the number of district court judges in a county is changed to an "objective workload analysis."

•  The objective workload analysis must take into account available judicial resources and the caseload activity of the court.

SSB 5369: Revising provisions for jurisdiction in child-support matters

•  The statutes governing establishment of child support are changed to include provisions terminating child support when parents marry, and allowing non-parent custodians the same notice and hearing rights as a custodial parent.

2SHB 2346: Updating the Uniform Parentage Act

Prime sponsor: Representative Darneille (similar bill: SB 6555, Senator Costa)

• Certain provisions of the Uniform Parentage Act (UPA) of 1973 are repealed and replaced with the Uniform Parentage Act of 2000.

• The new UPA expands on the procedures for: (1) establishing paternity by distinguishing between a presumed, acknowledged and adjudicated father; (2) establishing processes for adjudicating and acknowledging paternity; and (3) updating procedures for establishing paternity of children born by assisted reproduction.

• A parent may be established by an affidavit and a physician's certificate in cases where a child is born through alternative reproductive medical technology pursuant to the terms of a contractual agreement.

SHB 2347: Modifying the Uniform Interstate Family Support Act

Prime sponsor: Representative Darneille (similar bill: SB 6554, Senator Costa)

•  The Uniform Law Commissioner's amendments are incorporated into Wash-ington's Uniform Interstate Family Support Act.

HB 1460: Enforcing seat-belt laws as a primary action

Prime sponsor: Representative Lovick (similar bill: SB 5782, Senator Haugen)

•  Failure to comply with seat-belt laws is a traffic infraction.

•  Until now, law enforcement could only enforce the law requiring seat-belt use as a secondary action when a driver had been stopped for another violation.

• Violation of the law requiring seat-belt use is a primary action and may be enforced without any other traffic violation.

SSB 6461: Strengthening procedures for disqualification of drinking or drugged commercial drivers

Prime sponsor: Senator Gardner (similar bill: HB 1179, Representative Ericksen)

• All medical review officers (MROs) and breath-alcohol technicians (BATs) under contract with a motor carrier to conduct drug or alcohol testing on commercial drivers must provide positive results directly to the Department of Licensing (DOL). DOL must disqualify commercial drivers who fail the drug or alcohol test.

• Drivers who want to challenge the positive drug or alcohol results are entitled to a hearing on specified issues.

•  Employers of commercial drivers who refuse to submit to a required drug or alcohol test are permitted to notify law enforcement, or their MROs or BATs.

SSB 6748: Revising vehicle impound and transfer procedures

•  The penalty for abandoning a vehicle is set at $250 and includes suspension of driving privileges until penalties and restitution are paid.

•  When a previously abandoned vehicle is sold at a public auction, liability for the operation of the vehicle is transferred from the previous owner to the purchaser at the point of sale, and is evidenced by the abandoned-vehicle report. Tow operators must send a copy of the abandoned-vehicle report to the Department of Licensing (DOL) upon selling a vehicle at public auction to record the vehicle's buyer information.

•  The DOL must create a system that enables tow operators to send in abandoned-vehicle reports and individuals to send in their seller's reports of sale electronically.

•  A tow-truck operator has the option of scrapping a "junk" vehicle that has been abandoned twice without a title change. The value used in determining if a vehicle is a "junk" vehicle is changed from the value of the scrap to the value of the parts of the vehicle.

HB 2299: Defining "person" under the Business Corporation Act, Uniform Limited Partnership Act, and Limited Liability Company Act

• The definition of "person" that is used in the Revised Uniform Partnership Act is adopted for the Business Corporation Act, Uniform Limited Partnership Act and Limited Liability Company Act.

SHB 2301: Authorizing electronic notice and other communications under the Washington Business Corporation Act

• The secretary of state is authorized to adopt rules for the electronic filing of corporate documents.

• Filings, notices, consents, and other forms of communication between corporations, shareholders and directors may be made electronically.

HB 2407: Establishing the authority to create and operate regional jails

Prime sponsor: Representative Ballasiotes (similar bill: SB 6487, Senator Costa)

• Two or more local governments, or one or more local governments and the state, are authorized to create and operate regional jails.

•  A jurisdiction that sends a defendant to a regional jail in another county prior to conviction is responsible for providing the defendant access to his or her public-defense counsel.

SHB 2541: Expanding authority for interlocal agreements for jail services

Prime sponsor: Representative Hurst (similar bill: SSB 6393, Senator Kline)

• Contracts for jail services may be made between a county and a city, regardless of whether the city is within the county, or among counties and cities.

•  A jurisdiction that has contracted for the detention of defendants in another county's jail must provide for private contact with defense counsel.

ESB 5624: Requiring disclosure of fire-protection and building-safety information

Prime sponsor: Senator Kohl-Welles (similar bill: HB 1433, Representative Cooper)

•  Landlords of single-family residences must provide written notice to tenants disclosing fire-protection and safety information.

•  The landlord of a multi-family dwelling must provide written notice or a checklist to tenants that discloses specified fire-protection and safety information for the building.

2ESB 6001: Authorizing inspections of common areas and tenant dwelling units for fire-code violations

• Fire officials may immediately seek a search warrant if tenants or landlords deny a fire official the right to search dwelling units and common areas.

•  A court must issue a search warrant if it finds there is probable cause, specific to the dwelling unit or common area, of a criminal fire-code violation.

ESB 5852: Reporting on issues pertaining to racial profiling

Prime sponsor: Senator Franklin (similar bill: HB 2018, Representative O'Brien)

•  Local law-enforcement agencies must institute various training and educational programs to prevent racial profiling.

•  The Criminal Justice Training Commission must ensure that racial-profiling issues are addressed in law-enforcement training classes conducted by the commission.

•  The Washington Association of Sheriffs and Police Chiefs must report to the Legislature by December 31, 2002, and each year thereafter, on the progress of local law-enforcement agencies in meeting the requirements of the act.

ESSB 6076: Modifying the powers and duties of fish and wildlife law-enforcement officers

Prime sponsor: Senator Kline (similar bill: HB 2153, Representative Kessler)

• Fish and wildlife officers are designated as general authority peace officers, and vested with generally the same police powers and duties as sheriffs and peace officers.

•  Fish and wildlife officers do not have the authority to conduct warrantless searches of noncommercial private areas, or otherwise exceed constitutional search provisions.

ESSB 6428: Providing for loss-prevention review teams

Prime sponsor: Senator B. Sheldon (similar bill: HB 2353, Representative Alexander)

• The Office of Financial Management must form a loss-prevention review team to review a death, serious injury, or other substantial loss that allegedly involves a state agency.

•  The final report of a loss-prevention review team is inadmissible in a civil proceeding, except for impeaching a witness.

• A member of a loss-prevention review team is prevented from testifying in a civil proceeding as to the work of the review team or the incident under review.

• A person who has provided statements to a loss-prevention review team is prevented from being examined in a civil proceeding regarding the person's interactions with the review team.

SSB 6439: Terrorism – public disclosure

Prime sponsor: Senator Gardner (similar bill: ESHB 2411, Representative Haigh)

• Government records maintained to prevent or mitigate criminal terrorist acts are exempt from public inspection and copying.

•  Government records regarding the infrastructure and security of computer and telecommunications networks are exempt from public inspection and copying.

• The Joint Legislative Audit Review Committee must review the effect of the exemptions on agency responses to disclosure requests.