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August 2007Legislation of Interest to Lawyers: A round-up of the year’s law-related bills from Olympiaby Senator Adam Kline and Representative Patricia Lantz During the 105 days of the 2007 Legislature, a record number of bills were up for consideration, and legislation was produced that addressed many challenging issues of interest to civil and criminal-defense lawyers. This article summarizes some of those bills, many of which were worked on in the House and Senate Judiciary committees. Included in this summary are bills giving specific rights to domestic partners, creating a public guardianship office to exercise oversight on behalf of vulnerable persons, lowering the tort liability standard for local government probation departments, creating greater felony sentencing authority in auto-theft cases, creating and defining a “good faith” standard in insurance-claims practices, and defining “disability” as the term is used in the Law Against Discrimination. There is not enough space in this article to provide a full discussion of the content of each bill. However, all bills and bill reports from the 2007 legislative session may be obtained online at the legislative website, www.leg.wa.gov. In addition, a full description of all bills that passed the 2007 Legislature can be obtained by ordering the 2007 Final Legislative Report. To order, contact the Legislative Information Center at 360-786-7573. House Judiciary Committee staff may be contacted at 360-786-7122, or by sending inquiries to PO Box 40600, Olympia, WA 98504-0466. Senate Judiciary Committee staff may be contacted at 360-786-7455. Civil Law ESHB 1008 makes significant changes to the Abuse of Vulnerable Adults Act, particularly with respect to the protection-order process. The legislation expands the persons who may petition for a vulnerable-adult protection order to include certain “interested persons” and allows the Department of Social and Health Services (Department) to bring a petition without the consent of the vulnerable adult if the Department believes the vulnerable adult lacks the ability or capacity to consent. Particular notice requirements are established when a petition for a protection order is filed by someone other than the vulnerable adult, and a process is created for resolving a petition where the vulnerable adult does not consent to the petition. Other revisions to the protection-order process include: allowing protection orders to extend for five years; exempting the petitioner from the filing fee; creating a process for modifying or terminating a protection order; and requiring the development and use of standard petition and protection-order forms for orders sought or issued after October 1, 2007. A deceased vulnerable adult’s cause of action under the Act for damages resulting from abuse, exploitation, or neglect while residing at a facility or receiving care from a home health or hospice agency survives to the vulnerable-adult’s estate for recovery of the economic losses to the estate if there are no surviving statutory beneficiaries. SHB 1041: Modifying plurality voting for directors The Washington Business Corporations Act’s provisions on election of corporate directors are revised to give corporations the increased ability to deviate from or modify plurality voting without amending their articles of incorporation. A corporation may adopt in its bylaws a voting method for electing directors that specifies the number, percentage, or level of votes required for election, and that allows for the counting of votes cast against or votes withheld in determining whether a candidate has received the required vote. A corporation may alter the rule requiring that a director remain in office until a successor is elected or appointed, and shorter terms of office may also be provided for directors who are elected by less than some specified vote. A director’s resignation may be made effective contingent upon the happening of some future event, and a notice of resignation contingent upon the failure to receive a specified vote may be made irrevocable. HB 1042: Modifying the share acquisition time period for engaging in a significant business transaction The Washington Business Corporation Act is amended to add an exemption to Washington’s takeover statute. The new exemption allows a corporation to engage in a significant business transaction with an acquiring person after the person’s share acquisition and notwithstanding the five year “freezeout” period, if the significant business transaction is: (1) approved by a majority of the board of directors; and (2) authorized, at an annual or special shareholder meeting, by at least twothirds of the outstanding voting shares, not including the acquiring person’s voting shares. ESHB 1114: Regulating the marketing of estate distribution documents It is unlawful for anyone who is not authorized to practice law in this state to market “estate distribution documents” in or from the state. “Estate distribution documents” are documents such as wills or trusts that have either been prepared for a specific person or have been prepared as marketing materials. The unauthorized marketing of these documents is also a violation of the Consumer Protection Act. A person who is not authorized to practice law in this state may nonetheless gather information or assist in preparing estate distribution documents if he or she is employed by someone who is authorized to practice law in this state and does not provide legal advice. Financial institutions are exempt from the act. SHB 1144: Providing a uniform method of transferring a municipal court judgment into district court District courts are granted jurisdiction over proceedings to civilly enforce any money judgment from a municipal court or municipal department of a district court. The proceeding may be brought in the district where the municipal court or municipal department is located. Once transferred, the municipal judgment is recognized as a judgment of the district court, but the district court may not vacate or amend the judgment. The district court filing fee to transfer the judgment is $43. HB 1145: Modifying the definition of “account receivable” for purposes of commencing an action The term “account receivable” for the purposes of the applicable sixyear statute of limitations is defined as any obligation for payment incurred in the ordinary course of the claimant’s business or profession, whether arising from one or more transactions and whether or not earned by performance. This definition applies to all causes of action on accounts receivable, whether commenced before or after the effective date of the act. SHB 1458: Requiring notice to property owners before condemnation decisions Additional notice requirements are imposed in the condemnation process. A condemnor must give a property owner 15 days’ notice before holding a public meeting or taking final action that will select the owner’s property for condemnation or that will authorize the use of condemnation to acquire the property. Condemning entities required to give notice include: state agencies, counties, cities and towns, school districts, corporations, and other entities operating under the condemnation statutes that apply to the listed entities. “Final action” is defined, and specifics regarding the content and method of the notice are provided. Failure to meet the notice requirement voids subsequent proceedings as to persons not properly served with the notice unless the entity cures the failure. SHB 1669: Concerning the district and municipal court’s probation and supervision services District and municipal courts are provided limited immunity for the provision of pre-conviction or post-conviction misdemeanant supervision services, such as community corrections programs, probation supervision, pretrial supervision, or pretrial release services. A limited jurisdiction court that provides misdemeanant supervision services is not liable for damages based on the inadequate supervision or monitoring of a misdemeanor defendant or probationer unless the inadequate supervision or monitoring constitutes gross negligence. SHB 1777: Regulating charitable organizations that solicit contributions from the public The Charitable Solicitations Act (CSA) is substantially revised to improve the transparency and accountability of organizations that solicit funds from the public and to provide educational programs to help build public confidence and trust in these organizations. A number of statutory definitions are added or refined to clarify which entities are required to register, including clarification that while churches and integrated auxiliaries are exempt from registration, other religious organizations are not exempt. The secretary of state (secretary) is given broader authority to administer the CSA, including the authority to: establish a tiered financial reporting system based on the charitable organization’s revenues; establish a charitable advisory council; develop and operate an educational program, funded by additional registration fees; and enter into reciprocity agreements with other states for the purpose of exchanging information about charitable organizations and commercial fundraisers. A number of provisions relating to registration requirements are amended, including repealing the ability to make consolidated filings and requiring charitable organizations to file a copy of a contract entered into with a commercial fundraiser prior to solicitation of donations. Charitable-organization boards are required to review financial reports filed with the secretary and are subject to civil fines for material misrepresentations. Commercial fundraisers must agree to provide access to the names of the employees who are conducting solicitations for the charitable organization. SHB 1805: Increasing the homestead-exemption amount The amount of the real property homestead-exemption limit is increased to $125,000. In addition, the homestead-exemption laws are amended with respect to the collection of unpaid taxes by the Department of Revenue (DOR). First, the homestead exemption does not apply to debts for sales and use taxes that are collected and held in trust by the property owner but not remitted to the DOR. Second, a DOR tax warrant for unpaid taxes becomes a lien on the value of homestead property in excess of the homestead-exemption limit from the time the tax warrant is filed in superior court. HB 2034: Providing a civil cause of action for victims of motor vehicle theft A civil cause of action for car theft is created, allowing a person who is deprived of his or her car because of a violation of one of the car-theft statutes to sue the perpetrator to recover actual damages, as well as civil damages of up to $5,000 and the costs of the suit, including reasonable attorneys’ fees. Summons must be personally served on the defendant, unless he or she cannot be found after a diligent search, in which case service may be made on the secretary of state. The Department of Licensing must suspend the driver’s license of the defendant until all monetary obligations imposed as a result of a lawsuit are paid in full. Mandatory suspension is not required where the defendant has entered into a payment plan with the court. HB 2236: Disposing of certain assets A number of changes are made to a variety of provisions of the probate and trust laws. The Uniform Simultaneous Death Act (USDA) is amended to establish a general rule that in a simultaneous death situation a person is deemed to have died first if it is not established by clear and convincing evidence that he or she survived the other relevant person or persons by at least 120 hours. Circumstances under which this rule applies are provided. Other changes to the USDA include providing rules on determining death and establishing immunity from liability for a good-faith payment under the USDA under certain circumstances. Nonprobate asset provisions are amended to expand the definition of nonprobate asset to include certain brokerage accounts, contracts, and other written instruments that may provide for the nonprobate transfer of property and to provide that the termination of a spousal beneficiary designation in a nonprobate asset instrument upon a marriage dissolution is no longer restricted to dissolution decrees from courts of “this state.” Other changes include: creating a definition of “surviving spouse” and revising the definitions of “representation” and “posthumous child”; allowing separate lists designating recipients of tangible personal property to be used in conjunction with irrevocable trusts; allowing the tolling of the four-month period for contesting a will by the filing of a petition with the court; and allowing a court to award costs and attorneys’ fees under the Trust and Estate Dispute Resolution Act without finding that the litigation benefited the trust or estate involved. SSB 5228 : Revising provisions concerning actions under the Consumer Protection Act The attorney general is given authority to bring parens patriae actions under the Consumer Protection Act on behalf of persons residing in the state. In cases in which the attorney general has brought an action under the CPA for antitrust violations, the court is authorized to order restoration for an injured party regardless of whether the injury was the result of a direct or indirect purchase of goods or services. The ability of the state itself to sue for damages under the CPA is expressly made applicable to cases in which the state is indirectly injured by a violation of the act’s antitrust provisions. SSB 5320: Creating an Office of Public Guardianship as an independent agency of the judiciary An Office of Public Guardianship (Office) is created within the Administrative Office of the Courts, and the Supreme Court is directed to appoint a public guardianship administrator. The initial implementation of the public guardianship services are on a pilot basis in at least two geographical areas, one that is urban and one that is rural. The Office will contract with public or private entities or individuals to provide guardianship services to people whose income does not exceed 200 percent of the federal poverty level or who are receiving long-term care through the Department of Social and Health Services. SSB 5340: Defining disability in the Washington Law Against Discrimination “Disability” is defined as a sensory, mental, or physical impairment that is medically diagnosable, exists in a record, or is perceived to exist. For purposes of qualifying for reasonable accommodation from an employer, the impairment must substantially limit the employee in his or her employment. ESSB 5726: Creating the Insurance Fair Conduct Act An insurance company may not unreasonably deny an insurance claim. A first-party claimant may recover actual damages, attorneys’ fees, and treble damages if an insurer unreasonably denies an insurance claim or violates one of several enumerated provisions of the Washington Administrative Code regulating equitable insurance-claims handling. SSB 5910: Modifying the notice requirement of intent to file a medical-malpractice claim Notice of intent to commence an action against a healthcare provider for negligence must be provided by regular mail, registered mail, or certified mail with return receipt requested or by depositing the notice, postage prepaid, in the post office addressed to the defendant. The notice may be addressed to the chief executive officer, administrator, Office of Risk Management, or registered agent for service of process of the healthcare entity if the defendant is a healthcare provider entity or an agent or employee of the healthcare entity at the time of the alleged negligence. If the notice of intent to commence an action against a healthcare provider is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action will be extended 90 days from the date the notice was mailed. After the 90-day extension passes, the claimant has five court days to commence the action. SB 6059: Allowing attorneys to recover actual costs for service of process The prevailing party, upon judgment, is allowed certain sums by way of indemnity for expenses in the action, including the actual amount of money charged and incurred for the service of a process server. An exempt or registered process server is allowed to charge and collect, for each service assignment delivered to the process server for service, the following fees: (1) the actual amount if the fee is less than $100 or (2) a reasonable amount if the fee is greater than $100. Criminal Law E3SHB 1001: Combating auto theft The act known as the Elizabeth Nowak ESSB 5312: Addressing the issue of stolen metal property Record-keeping requirements are established for scrap-metal businesses engaging in non-ferrous metal transactions with the general public. Limitations are established as to when scrap-metal businesses may engage in transactions involving commercial metal property, metallic wire, and beer kegs. Scrap-metal businesses are prevented from paying cash for transactions involving metal property valued at greater than $30, and penalties for metal theft are established. The crimes of first- and second-degree theft and first- and second-degree possession of stolen property are added to the list of aggravating factors when: (1) the property damage to the victim caused in the course of the theft of metal property is more than three times the value of the stolen metal property or (2) the theft of the metal property creates a public hazard. SSB 6100: Limiting the use of charitable donations in charging decisions A city attorney, county prosecutor, or other prosecuting authority may not dismiss, amend, or agree not to file a criminal charge or traffic infraction in exchange for a contribution, donation, or payment to any person, corporation, or organization. Payments to any specific fund authorized by state statute, or collection of costs associated with actual supervision, treatment, or collection of restitution under a pretrial diversion program are permitted. Family Law SSB 5336: Protecting individuals in domestic partnerships by granting certain rights and benefits The state domestic-partnership registry is created in the Office of the Secretary of State (OSOS). Individuals seeking to register domestic partnerships must meet specific eligibility criteria and file the appropriate paperwork with the OSOS. Certain powers and rights granted to spouses are granted to state-registered domestic partners. A certificate of domestic partnership issued by the OSOS fulfills eligibility requirements for the partner of the public employee to receive benefits. 2SSB 5470: Revising provisions concerning dissolution proceedings The presumption that a child will reside with the parent who has taken greater responsibility for the daily needs of the child is eliminated. Instead, the ability of the court to order the child to frequently alternate between residences is emphasized if it is in the best interests of the child. An initial point-of-contact program is established for parties seeking to file petitions for a dissolution that will provide information about alternatives to the dissolution and litigation, effective July 1, 2009. A reduced-fee mediation service is established pre- and post-decree for parties within one year of the filing of a dissolution petition, effective January 1, 2009. Interpreters are provided for parties to a dissolution, and a task force is created to study dissolution matters and make recommendations. Data tracking of orders for division of residential time is established in each county. Domestic Violence SHB 1642: Concerning criminal violations of no-contact orders, protection orders, and restraining orders The statute describing when it is a gross misdemeanor to violate a nocontact, protection, or restraining order is amended in response to trial court holdings that a violation of a restraint provision in one of these orders is a gross misdemeanor only if the violation would require an arrest under the mandatory arrest statute. The act establishes that it is a gross misdemeanor when a person who is subject to a nocontact, protection, or restraining order knows of the order and violates a restraint provision prohibiting acts or threats of violence against, or stalking of, a protected party, or a restraint provision prohibiting contact with a protected party, regardless of whether the violation is one for which an arrest is required. Sen. Adam Kline has served for 10 years as the senator for the 37th District of Washington. Before entering law school, he worked as a merchant seaman and as a newspaper reporter. He practiced law for 32 years before retiring in 2004 to work for the Laborers Union. Rep. Patricia Lantz has represented the 26th Legislative District of Washington since 1997. She is chair of the House Judiciary Committee. She was formerly an attorney in private practice focusing on land use and immigration law. Sen. Kline and Rep. Lantz would like to thank Edie Adams and Lidia Mori for their assistance with this article.
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