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August 2008Legislation of Interest to Lawyersby Senator Adam Kline and Representative Patricia Lantz The 2008 legislative session was a “short” session in that it lasted 60 days instead of the alternative 105 days. Despite being a 60-day session, a record number of bills were introduced. Some of the major issues considered by the Senate and House Judiciary Committees included identity-theft laws, admissibility of evidence in sex-offense cases, court interpreters in civil and criminal proceedings, the authority of tribal police officers, eminent domain, ignition interlock requirements, obligations of landlords under writs of restitution, expansion of equity-skimming laws, and extension of rights and responsibilities to registered domestic partners. Due to space limitations, this article will provide a brief summary of some of the bills heard by the Senate and House Judiciary Committees. However, all bills and bill reports from the 2008 legislative session may be obtained online at the legislative website, www.leg.wa.gov. In addition, a full description of all the bills that passed the 2008 Legislature can be obtained by ordering the 2008 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, and Senate Judiciary Committee staff may be contacted at 360-786-7415. CIVIL LAW ESHB 1865: Obligations of landlords under writs of restitution A landlord’s duties with regard to storage of an evicted tenant’s belongings are revised. When a writ of restitution for the eviction of a tenant is issued by a court, a landlord may, but is not required to, store the evicted tenant’s property in any reasonably secure place. A landlord is required to store the tenant’s property if the tenant makes a written request for storage or if the landlord knows that the tenant is a person with a disability that prevents the tenant from making a written request and the tenant has not objected to storage. The procedures for selling and disposing of stored property are revised. For property with a cumulative value of over $100, the landlord may sell the property, but not dispose of it, 30 days after the date the landlord sends notice of the sale to the tenant. EHB 2476: Tribal law enforcement Tribal police officers are authorized to act as general-authority Washington peace officers when the appropriate tribal government meets specified requirements regarding officer certification, liability insurance, and administration. Tribal police officers must meet the same certification standards that apply to general-authority peace officers. The tribal government must enter into an interlocal agreement with all local law-enforcement agencies that will have shared jurisdiction with tribal police officers. The tribal government must carry liability insurance, approved by the Office of Financial Management, and waive sovereign immunity to the extent of such liability coverage to allow a civil action for damages in the event a tribal police officer acting in the capacity of a state peace officer commits a tort. HB 2499: Notice requirements under the Washington Business Corporation Act A public company may satisfy its requirement under the Washington Business Corporation Act to accompany a notice to shareholders with certain additional material by posting the additional material on an electronic network at or before the time the notice is delivered to the shareholders and delivering to the shareholders a separate record of the posting with instructions on how to access the electronic posting. A public company electing to post additional materials on an electronic network must provide a copy of the additional materials in a tangible medium to any shareholder entitled to such notice who makes a request. SHB 2727: Personality Rights Act The Personality Rights Act is revised to clarify that the Act applies to all individuals and personalities deceased before, on, or after June 11, 1998, the effective date of the Act, and to clarify that the Act applies to all individuals and personalities, living and deceased, regardless of place of domicile or place of domicile at time of death. Personality rights shall be deemed to have existed before June 11, 1998, for purposes of determining who is entitled to the rights recognized under the Act. Personality rights are freely transferable through any permissible inter vivos or testamentary instrument, regardless of when the transferring instrument was entered into or executed. Personality rights of a deceased person are owned and enforceable by those designated in a testamentary instrument or by intestate succession, regardless of whether the law of the domicile of the deceased person recognizes a similar or identical property right. HB 2791: Distressed property conveyances HB 2791 expands the equity-skimming laws to impose certain duties and restrictions on persons or entities engaging in transactions with homeowners who are in foreclosure or at risk of foreclosure (distressed homeowners). A “distressed home consultant” is a person who systematically contacts distressed homeowners or a person who contacts a distressed homeowner and offers to perform certain services, such as stopping a foreclosure sale, assisting the homeowner in refinancing a loan, or obtaining an option to purchase the distressed home after foreclosure. Certain listed entities and individuals (such as financial institutions, credit-counseling services, and licensed attorneys) are exempt from the definition of distressed home consultants. A distressed home consultant has a fiduciary duty to a distressed homeowner and must act in the homeowner’s best interest, disclose all material facts to the homeowner, use reasonable care in performing his or her duties, and provide an accounting to the homeowner. Distressed home consultant transactions must be in writing and contain certain notice to the homeowner. A “distressed home conveyance” is a transaction in which a foreclosed homeowner transfers an interest in the distressed property to a purchaser; the purchaser allows the foreclosed homeowner to occupy the property; and the purchaser either: conveys or promises to convey the property to the foreclosed homeowner, provides the foreclosed homeowner with an option to purchase the property at a later date, or promises the foreclosed homeowner an interest in the proceeds of any resale of the property. A distressed home conveyance must be by written contract that contains specified information, and the homeowner has a right to cancel the contract within five business days. A number of obligations and restrictions are imposed on purchasers of distressed homes. For example, a purchaser must not enter into repurchase or lease terms that are unfair, commercially unreasonable, or infeasible for the homeowner to meet, nor represent that he or she is acting on behalf of the interests of the homeowner. A violation of the Act is a per-se violation of the Consumer Protection Act. In a private right of action, if the court finds the defendant acted in bad faith, the court may double or triple the damage award subject to a $100,000 limit. 2SHB 3104: Domestic partners Various statutory rights and responsibilities provided to spouses are extended to state-registered domestic partners. A legal union between a same-sex couple, other than a marriage, that is created in a different state and that is substantially equivalent to a Washington domestic partnership will be recognized in Washington. The following is a short description of some of the rights and responsibilities extended to domestic partners: • Procedures for dissolution apply to domestic partners, unless the domestic partners qualify to terminate their partnership in a non-judicial process through the Secretary of State’s office. SSB 5378: Deed of trust provisions A trustee has no fiduciary obligation to any persons having an interest in the property subject to the deed of trust. The trustee or successor trustee must act impartially between the borrower, grantor, and beneficiary. The trustee may decline to complete a foreclosure sale or deliver the trustee’s deed and refund the purchase price if it appears that the bidding has been collusive or defective, or that the sale might have been void. Trustees must disclose the amount necessary to satisfy the obligation in full, and must provide the disclosure within 10 days of receiving a written request for it. A trustee must submit written notice of a postponed sale no less than four days before the new date and time of sale, when the new sale occurs within seven days of the postponement. When the sale is postponed to a date beyond seven days into the future, the trustee must submit written notice within three days of postponement. The trustee must provide such notice to the borrower, grantor, and junior lien holders. Such notice is necessary only if the sale is postponed to any day after the originally scheduled date. A trustee must maintain physical presence and telephone service at a Washington address. SSB 6060: Unlawful detainer actions In an action of forcible entry, detainer, or unlawful detainer based upon nonpayment of rent, the defendant is required to do one of two things: (1) pay into the court registry the amount alleged due in the notice and continue to pay the monthly rent into the court registry while the action is pending; or (2) submit to the court a written and sworn-under-penalty-of-perjury statement that sets forth the reasons why the rent alleged due in the notice is not owed. The reasons may include that the rent alleged due is not owed based upon a legal or equitable defense or set-off arising out of the tenancy. The defendant must comply with one of the options on or before the deadline date in the notice. That date may not be prior to the deadline for responding to the eviction summons and complaint for unlawful detainer. If the defendant fails to comply with either of the two options, a writ of restitution without further notice may be obtained. ESSB 6776: State whistle-blower protections Definitions for abuse of authority, gross mismanagement, and public official are added to the whistle-blower protection act. The definition of reprisal or retaliatory action is expanded. Improper governmental action includes any action by an employee undertaken in the performance of the employee’s official duties which prevents the dissemination of scientific opinion or alters technical findings without scientifically valid justification, unless disclosure is prohibited by state law or common-law privilege. The definition of whistle-blower includes an individual who in good faith reports, or is perceived by the employer as reporting, alleged improper governmental action to the state auditor or public official initiating an investigation. The auditor has the sole authority to investigate reports of improper governmental activities made by whistle-blowers to any public official. The identity of any person who, in good faith, provides information in a whistle-blower investigation is confidential at all times unless the person consents to disclosure in writing or by acknowledging his or her identity as a witness who provides information in an investigation. If the Washington State Human Rights Commission (WSHRC) has not issued a final decision on the alleged whistle-blower retaliation within 180 days, or within 90 days that WSHRC denied the requested relief in whole or in part, the complainant may seek injunctive or final relief for the complaint by filing an action in superior court seeking a review of the complaint. In lieu of filing a complaint for retaliation with the WSHRC, a complainant may pursue arbitration conducted by the American Arbitration Association or another arbitrator mutually agreed upon by the parties. The cost must be shared equally by the parties. CRIMINAL HB 2637: Criminal case records The procedures applicable to criminal process issued to a recipient outside of Washington are revised. An out-of-state recipient of a criminal warrant, subpoena, or court order compelling the production of records must comply with the process, generally within 20 days. A recipient’s motion to quash the process must be made in the Washington court that issued the process within the same time that is required for the recipient’s response to the process. Records produced by an out-of-state recipient may be authenticated by the records custodian without testimony if the records are accompanied by the custodian’s written declaration or certification of authenticity. A party offering such a verified record into evidence must give opposing parties sufficient notice to allow a challenge. A party may challenge the admissibility of a verified record, but only if the offering party is given sufficient notice to allow an opportunity to produce the record custodian at trial. A Washington recipient of out-of-state criminal process must comply with the process if it appears valid on its face. Foreign state recipients of Washington criminal process and Washington recipients of foreign state criminal process are given immunity for complying with the process and for any failure to notify a person affected by a disclosure made by the recipient. E2SHB 2712: Criminal street gangs The Act defines “criminal street gang,” “criminal street gang associate or member,” and “criminal street gang-related offense.” Increased criminal penalties are established for certain criminal street gang-related activities. The list of illustrative aggravating factors in the Sentencing Reform Act is amended to include cases where the crime is committed for the benefit of a criminal street gang. Increased penalties apply to any criminal street gang-related felony offense committed by an adult where the adult compensated, threatened, or solicited a minor in order to involve that minor in the commission of the felony. Community custody is required for a criminal street gang member who is convicted of Unlawful Possession of a Firearm. A new crime called Criminal Street Gang Tagging and Graffiti is created and occurs when a person commits a graffiti-related malicious mischief in the third-degree offense, the person has multiple current convictions or a prior conviction for such an offense, and the current offense, or one of the current offenses, is a criminal street gang-related offense. A person who commits a Criminal Street Gang Tagging and Graffiti offense is subject to penalties and costs that may be recovered in a civil cause of action by the victim of the offense. The Washington State Patrol and the Washington Association of Sheriffs and Police Chiefs (WASPC) are directed to coordinate and implement a statewide gang database for use by law-enforcement agencies for tracking and assessing gangs and gang activity. The WASPC is required to establish grant programs for local law-enforcement agencies in support of special enforcement emphasis to target gang crime and to support local graffiti- and tagging-abatement programs. The Department of Community, Trade, and Economic Development must establish a witness-assistance grant program to provide witnesses of felony gang-related offenses with temporary assistance, relocation, and shelter. HB 2719: Accurate sentences In a criminal sentencing hearing, a criminal history summary relating to the defendant from the prosecuting attorney or from a state, federal, or foreign governmental agency is prima facie evidence of the existence and validity of the convictions listed in the summary. A defendant’s failure to object to criminal history presented at sentencing is deemed acknowledgment of the criminal history. When an offender is resentenced, both parties may present, and the court may consider, all relevant evidence regarding criminal history. This includes prior convictions that were not originally included in the offender’s criminal history or offender score. Statutory provisions regarding supervision of offenders in the community are reorganized and consolidated. The Offender Accountability Act of 2000, which changed how offenders are supervised in the community, is applied retroactively to offenders who committed their offenses prior to July 1, 2000, to the extent it is constitutionally permissible. E2SHB 3254: Ignition interlock license for DUI offenders E2SHB 3254 creates an ignition interlock license (IIL) for persons who have had their licenses suspended due to a DUI offense. The IIL allows a person to drive a noncommercial vehicle during his or her suspension period. A court must order a person convicted of DUI to apply for an IIL, but may waive the requirement under limited circumstances and instead order the person to submit to alcohol monitoring. Applying for an IIL is discretionary for persons who have not been convicted of DUI but have had an administrative suspension. Persons convicted of DUI are no longer eligible for a temporary restricted license (TRL). Persons who have lost their licenses administratively based on an implied consent violation might still be able to apply for a TRL, but requirements for ignition interlock devices under TRLs are removed. An applicant is not eligible for an IIL if he or she has committed a vehicular assault or vehicular homicide within the prior seven years. In addition, the Department of Licensing must cancel the IIL upon receipt of notice that the person has been convicted of violating IIL restrictions or convicted of a separate offense that would require suspension of a regular driver’s license. The license holder must pay for the cost of the device, plus an additional $20 per month, to be deposited in a account for indigent persons who are restricted to driving with an ignition interlock device. Other provisions of E2SHB 3254 include: shortening the time frame in which a person arrested for DUI must request a DOL hearing from 30 days to 20 days, and amending the felony DUI law to include out-of-state convictions for vehicular homicide or vehicular assault that are comparable to Washington’s DUI-related vehicular homicide or vehicular assault offenses. ESSB 6442: Reauthorizing the Office of Public Defense The director of the Office of Public Defense (OPD) is required to administer all state-funded services in the program areas of trial court criminal indigent defense, appellate indigent defense, representation of indigent parents in dependency and termination cases, extraordinary criminal justice cost petitions, and compilation of copies of DNA test requests by persons convicted of felonies. In addition, the director must submit a biennial budget for costs related to these program areas. An annual report on indigent defense services is required to be submitted by the director to the OPD Advisory Committee, the Legislature, and the Supreme Court. The OPD Advisory Committee is expanded to include the following persons: one person appointed by the Washington State Association of Counties, and one person appointed by the Association of Washington Cities. No person appointed to the Advisory Committee may provide indigent defense services funded by a city, county, or the state, except on a pro bono basis, during that person’s term of appointment. No person may serve as a judge, except on a pro bono basis, or a court employee, during that person’s term of appointment. The duties of the Advisory Committee are specified. The provision that would sunset OPD effective July 1, 2008, is repealed. SSB 6933: Evidence in sex-offense cases Washington Superior Court Evidence Rule 404(b) is changed through an amendment to RCW Chapter 10.58. In a criminal action charging a sex offense, evidence of the defendant’s commission of other sex offenses is admissible, notwithstanding Washington’s Evidence Rule (ER) 404(b), if relevant to any fact in issue, if the evidence is not inadmissible under ER 403. The prosecutor is required to disclose such prior-sex-offense evidence to the defendant at least 15 days before trial, including statements of witnesses or summaries of the substance of any testimony expected to be offered. For purposes of this exception to ER 404(b), the term “sex offense” is defined. Factors for the trial judge to consider when making the ER 403 balancing test are included in the act. SB 5878: Identity-theft reports A person who believes his or her financial information or means of identification has been illegally obtained, used, or disclosed to another to commit, aid, or abet a crime may file an incident report with a law-enforcement agency that has jurisdiction over the victim’s residence, place of business, or the place where the crime occurred. The law-enforcement agency is directed to create a police incident report and provide the complainant with a copy of the report. The agency is authorized to refer the report to another law-enforcement agency. Investigation of a report claiming identity theft is not mandated under this Act, and an incident report is not required to be counted as an open case for statistical purposes. The relevant unit of prosecution for identity theft is an unlawful use of a means of identification or financial information. A defendant may be prosecuted and punished separately for every instance the defendant unlawfully obtains, possesses, transfers, or uses the means of identification or financial information, unless the instances constitute the same criminal conduct. Whenever any series of transactions involving a single person’s identification or financial information would, when considered separately, constitute identity theft in the second degree because of value, and the series of transactions are part of a common scheme or plan, the transactions may be aggregated for purposes of determining the degree of identity theft involved. COURTS 2E2SHB 2176: Court interpreters Each trial court must develop a written plan for providing interpreter services to non-English-speaking persons accessing the court system in both civil and criminal legal matters. The plan must address several issues that are specified in the legislation. Each court that develops an approved plan will receive partial reimbursement for interpreter services if the appointed interpreter is certified or qualified and the fee paid to the interpreter meets standards established by the Administrative Office of the Courts. Courts also will receive partial reimbursement where a qualified interpreter is appointed for a hearing-impaired person in court proceedings. Reimbursement amounts are subject to funding. 2SHB 2557: Courts of limited jurisdiction The dollar limit on the jurisdiction of district courts is raised from $50,000 to $75,000, and the dollar limit on the jurisdiction of small claims court is raised from $4,000 to $5,000. Cities are specifically authorized to contract with other cities through interlocal agreement for the provision of municipal court services. The municipal department form of municipal court is eliminated, but existing municipal departments are grandfathered and may continue to operate under pre-existing provisions. Beginning in July 2010, the authority of court commissioners in municipal courts (other than Seattle Municipal Court) is limited such that a court commissioner may not preside over trials in criminal matters, or over jury trials in civil matters unless agreed to by all parties. This limitation extends to district courts beginning July 2008. The statute allowing an automatic transfer of a case from a district court commissioner to a judge is repealed. Instead, the statutory provision regarding disqualification of a district judge is amended to apply to all judicial officers, including court commissioners, in both district and municipal courts. 2SHB 2903: Access coordinator at the Administrative Office of the Courts Subject to the availability of funds, the Administrative Office of the Courts (AOC) must create the position of court access and accommodations coordinator (coordinator) to assist the courts in complying with their duty to provide equal access to persons with disabilities. The coordinator must review the needs of courts for training and other assistance required to provide access for persons with disabilities, provide guidance and assistance upon request, and identify and improve court access to appropriate assistive devices. In carrying out these duties, the coordinator must consult with persons with disabilities and facilitate communication between the AOC and persons with disabilities and their representative groups. ESB 6357: Service of process in domestic-violence cases If timely personal service of an order setting the hearing on a petition for relief from domestic violence cannot be made, the court must set a new hearing date and either require one additional attempt to obtain personal service or permit service by publication or mail. The court must not require more than two attempts to obtain personal service, and must permit service by publication or mail, unless the petitioner requests additional time to attempt personal service. These rules also apply if one seeks to modify a protection order. The requirements for service of notice for a modification hearing are made consistent with the requirements for service of notice for a hearing on a petition for relief from domestic violence. This act shall be known as the Rebecca Jane Griego Act. FAMILY LAW 2SHB 2822: Family and Juvenile Court Improvement Program A Family and Juvenile Court Improvement Grant Program is created and will be administered by the Administrative Office of the Courts (AOC). A superior court may apply for grants from the program by submitting a local improvement plan to the AOC. To be eligible for grant money, the court’s plan must meet criteria developed by the AOC and approved by the Board for Judicial Administration. The AOC criteria must be consistent with the Unified Family Court principles. The court’s plan must: (1) commit to a chief judge assignment to the family and juvenile court for a minimum of two years; (2) implement the principle of one judicial team hearing all of the proceedings in a case involving one family, especially in dependency cases; and (3) require court commissioners and judges assigned to family and juvenile court to receive a minimum of 30 hours specialized training in topics related to family and juvenile law within six months of assuming duties on the family and juvenile court. E2SHB 3205: Child dependency proceedings In child dependency proceedings where a child has been in foster care for 15 of the most recent 22 months, the court must require the Department of Social and Health Services to file a petition to terminate parental rights, unless the court finds that there is a good cause exception why a petition should not be filed. If the court makes such a finding, it must be reviewed at all subsequent motion and review hearings pertaining to the child. SSB 6306: Visitation rights for relatives of dependent children A dependent child’s relative may petition the juvenile court in a dependency matter for reasonable visitation with the child if the following exists: (1) the child has been found dependent under RCW 13.34 or through voluntary relinquishment under the adoption statutes; (2) the parental rights of both of the child’s parents have been terminated; (3) the child is in the custody of DSHS or another public or private agency; and (4) the child has not been adopted and is not in a pre-adoptive home or other permanent placement at the time the petition is filed. The term relative does not include the child’s parent. The court may grant the petition if it finds the above factors have been met, unsupervised visits between the child and the relative do not present a risk to the child’s safety or well-being, and the visitation is in the best interest of the child. In determining the best interest of the child, the court must consider at least the following: (1) the love, affection, and strength of the relationship between the child and the relative; (2) the length and quality of the prior relationship between the child and the relative; (3) any criminal convictions for or founded abuse history by the relative of a child; (4) whether the visitation will present a risk to the child’s health, welfare, or safety; (5) the child’s reasonable preference; and (6) any factor relevant to the child’s best interest. The court may modify the visitation order upon a showing that the visitation poses a risk to the child’s safety or well-being. The visitation order must state that it will terminate upon the child’s placement in a pre-adoptive home or if an abuse or neglect allegation is found against the relative. This petition process is not intended to impair or alter any authority a court currently has to order visitation in a dependency matter. ESSB 6792: Dependency The court may order that a hearing be held on the merits of a petition to reinstate parental rights if it finds by a preponderance of the evidence that reinstatement is in the child’s best interests. The court, upon the child’s motion, or upon the court’s own motion, may hear a petition filed by a child younger than 12. If the court grants the child’s petition, a temporary order of reinstatement is entered. After the child has been placed with the parent for six months and the placement has been successful, the court must hold a hearing and enter an order restoring the parent’s rights and dismissing the dependency. The state, DSHS, and its employees are not liable for civil damages resulting from acts or omissions under the parental reinstatement section of the law unless the act or omission constituted gross negligence. At a shelter care hearing, the court must determine whether an order expelling an allegedly abusive household member from the home of the non-abusive parent, guardian, or custodian will allow the child to remain safely in the home. At a shelter care hearing, uncertainty by a parent, guardian, legal custodian, relative, or other suitable person that the alleged abuser has in fact abused the child cannot be the sole basis upon which the child is removed from the care of the parent, guardian, legal custodian, relative, or suitable other person, nor can it be the sole basis upon which to preclude placement with either a relative or another suitable person. Under chapter 26.44 RCW, the court may enter a restraining order to protect an allegedly abused or neglected child. If the child’s caretaker complies with the restraining order, uncertainty by the caretaker that the alleged abuser has abused the alleged victim must not, alone, be a basis to remove the alleged victim from the caretaker, nor must it be considered neglect. The provision allowing a child to petition the juvenile court to reinstate previously terminated parental rights within three years of the exhaustion of any right to appeal the termination order, if the order is appealed, is removed. A pilot program is established in Spokane, King, Thurston, and Benton-Franklin counties. The pilot is to be structured as follows: 1) For children ages 12 years and older who are the subjects of dependency proceedings, the following rights are established: a) the right to receive notice of hearings; b) the right to be present at hearings; and c) the right to be heard personally. 2) Prior to hearings, the child’s guardian ad litem (GAL) or attorney must determine if the child wishes to attend the hearing. If the child wishes to attend, the attorney and GAL must coordinate with the child’s caregiver and DSHS or other supervising agency to arrange for transportation. 3) If the child exercises his or her right to be present, the court may interview the child in chambers to determine the child’s wishes regarding issues before the court. When a child has been in out-of-home care for 15 of the most recent 22 months after filing of the dependency petition, the court must require the filing of a petition to terminate parental rights. Senator Adam Kline has served for 11 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. Representative Patricia Lantz has represented the 26th 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. Senator Kline and Representative Lantz would like to thank Edie Adams and Lidia Mori for their assistance with this article.
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