August 2009

Legislation Lineup for Lawyers

by Senator Adam Kline and Representative Jamie Pedersen

The 2009 session of the Legislature was dominated by resolving the budget crisis facing the state. As chairs of the House and Senate Judiciary committees, we worked hard to preserve funding for Justice in Jeopardy initiatives and were largely successful, despite big cuts in other parts of the budget. Although many policy committees were -quieter this session because of a lack of money, the House and Senate Judiciary committees had a very busy docket. House Judiciary was referred 173 measures, held hearings on 104 measures, and reported out 86 measures with a do-pass recommendation. Of those, 62 passed the Legislature and were signed into law by Governor Gregoire. Senate Judiciary was referred 131 measures, heard 96 measures, and reported out 84 measures with a do-pass recommendation. Of those, 49 were signed into law by Governor Gregoire. In addition, Senate Judiciary was referred 10 gubernatorial appointments, of which nine were heard and ultimately confirmed by the Senate.

The Judiciary committees both have broad jurisdiction, although there are differences between the subjects each committee handles. Both committees address legislation concerning: corporations and other business entities; nonprofits and other legal entities; real property; tort law; probate, trusts, and estates; judicial-branch agencies and the court system; civil and criminal procedure; and guardianship. Principal differences in committee jurisdiction are that family law issues are handled by House Judiciary, but not Senate Judiciary; and criminal law issues are handled by Senate Judiciary, but not House Judiciary, with some exceptions.

This article provides summaries of the main bills of interest to attorneys that were considered by the House and Senate Judiciary committees. For information about other legislation enacted this session, you can use the legislative website, www.leg.wa.gov, which provides a listing of all 2009 legislation signed into law. More detailed information about a bill, including bill reports and bill history, can be found through the “bill information” link. In addition, a brief summary of all legislation passed, arranged by committee, may be found on the House and Senate websites: www.leg.wa.gov/house/committees and www.leg.wa.gov/senate/committees. House Judiciary Committee staff may be contacted at 360-786-7180, and Senate Judiciary Committee staff may be contacted at 360-786-7491.

BUSINESSES AND OTHER LEGAL ENTITIES

SHB 1067 — Adopting the Washington Uniform Limited Partnership Act

Prime Sponsor: Representative Jamie Pedersen

The Washington Uniform Limited Partnership Act (WULPA) is adopted and replaces the Washington Revised Uniform Limited Partnership Act. The WULPA contains changes to many aspects of limited partnership law to update and modernize the statute and to conform its provisions more closely to statutes governing other business entities in Washington. The WULPA is a stand-alone act that is no longer linked to and dependent on the Revised Uniform Partnership Act. The WULPA allows for the creation of limited liability limited partnership (LLLP) status, creates a process for a limited partnership to convert to or from another form of business entity, and modifies the rights and duties of general and limited partners and the liability of limited partners. Other changes made by the act include provisions regarding: access to information by a partner; dissociation of partners; process and requirements for filing and amending records with the Secretary of State; improper distributions of the limited partnership’s assets; and the process and obligations relating to dissolution of a limited partnership. The act applies to limited partnerships formed on or after January 1, 2010. Limited partnerships formed prior to January 1, 2010, may elect to be governed by the act as of January 1, 2010. On July 1, 2010, all limited partnerships are subject to the new act.

HB 1068 — Revising the Washington Business Corporation Act

Prime Sponsor: Representative Jamie Pedersen

HB 1068 changes the notice requirements for shareholder actions taken without a shareholders’ meeting or vote. Notice that shareholder consent is being sought may be given either by the corporation or by another person soliciting shareholder consents. In addition, a second notice stating that sufficient shareholder consents have been executed must be given by the corporation promptly after delivery to the corporation of shareholder consents sufficient to approve the action.

SHB 1592 — Registering business entities and associations with the Secretary of State

Prime Sponsor: Representative Jamie Pedersen

The Office of the Secretary of State (OSOS) requested this legislation to change provisions related to various business entities and associations registered with the OSOS. The Limited Liability Companies Act is amended to change the requirements for the reinstatement of administratively or voluntarily dissolved limited liability companies. Provisions are added to the chapter governing limited liability partnerships (LLPs) to establish requirements for designating a registered agent and making changes to an LLP’s registered office or agent. These requirements also apply to foreign LLPs. Existing corporations sole registered with the OSOS are required to file an annual report with a $10 filing fee. A corporation sole that fails to file an annual report may be administratively dissolved or have its certificate of authority revoked. Effective August 1, 2009, a corporation sole may not be formed.

COURTS

SHB 1919 — Operating and administering a drug court program

Prime Sponsor: Representative Ruth Kagi

The purposes for which funds in the Criminal Justice Treatment Account (CJTA) may be used are expanded to allow use of the funds for drug court program operating and administrative costs. Not more than 10 percent of the funds received by a county or group of counties participating in a regional agreement may be spent on operating and administrative costs associated with the drug court program. No local match or maintenance of effort is required on the CJTA funding that is used for operating and administrative costs. The authorization to expend funds for drug court program operating and administrative costs expires June 30, 2013.

SHB 2362 — Providing support for judicial branch agencies

Prime Sponsor: Representative Lynn Kessler

Temporary surcharges are imposed on certain superior, district, and small claims court fees. A surcharge of $30 applies to various fees collected by superior courts, including the initial filing fee, petition for judicial review, and notice of appeal or discretionary review. A surcharge of $20 applies to the district court civil filing fee; fee for counterclaims, cross-claims, or third-party claims; and fee for the initial paper filed in an appeal from a court of limited jurisdiction. A $10 surcharge applies to the small claims court filing fee. These surcharges will be deposited in the newly created Judicial Stabilization Trust Account to be used for the support of judicial branch agencies. The surcharges expire on July 1, 2011.

ESB 5013 — Fees collected by county clerks

Prime Sponsor: Senator James Hargrove

The fee for issuance of a certificate of qualification and certified copies of letters of administration, testamentary, or guardianship is raised from $2 to $5. The cap on the fee for clerk services such as performing historical searches and compiling statistical reports is raised from $20 to $30. The fee for processing ex parte orders is changed from an hourly fee to a flat fee of $30. The service fee for receipt of the first page of a faxed document is raised from $3 to $5. The assessment county clerks currently collect for legal financial obligations is codified in the statute that governs clerk service fees and is set at $100 per year.

SSB 5151 — Authorizing the appointment of criminal court commissioners

Prime Sponsor: Senator Adam Kline

The presiding superior court judge in counties with a population greater than 400,000 may appoint attorneys to act as criminal court commissioners to assist the superior court in disposing of adult criminal cases. The county legislative authority must approve the creation of criminal commissioner positions. The criminal commissioner has the same power, authority, and jurisdiction as a superior court judge to: preside over arraignments, preliminary appearances, initial extradition hearings, and noncompliance proceedings; accept pleas if authorized by local court rules; appoint counsel; make probable cause determinations; set, amend, and review conditions of pretrial release; set bail; set trial and hearing dates; authorize continuances; and accept waivers of the right to speedy trial.

SB 5277 — Fees collected by district court clerks

Prime Sponsor: Senator Brian Hatfield

At the option of the district court, clerks may collect fees for the following services: (1) preparing a certified copy of an instrument on file or of record in the clerk’s office — $5 for the first page or a portion of the first page and $1 for each additional page; (2) authenticating or exemplifying an instrument — $2 for each additional seal affixed; (3) preparing a copy of an instrument on file or of record without a seal — 50 cents per page; (4) copying a document without a seal or that is in an electronic format — 25 cents per page; (5) copies made on a CD — $20 per CD; (6) receiving faxed documents authorized by court rules — up to $3 for the first page and $1 for each additional page; and (7) services such as processing ex parte orders, performing historical searches, compiling statistical reports, and conducting exceptional record searches — up to $20 per hour or portion of an hour.

DOMESTIC VIOLENCE

HB 1148 — Protection of animals from domestic-violence perpetrators

Prime Sponsor: Representative Brendan Williams

HB 1148 specifies that when a court issues a domestic-violence protection order, it may order that the petitioner be granted exclusive custody or control of the family pet. The court may prohibit the respondent from interfering with the petitioner’s efforts to remove the pet and from knowingly coming within a specified distance of specified locations where the pet is regularly found. It is a gross misdemeanor if the respondent violates a provision that prohibits interference with the petitioner’s efforts to remove the pet.

FAMILY LAW

SHB 1170 — Parenting plan modification based on the military service of a parent

Prime Sponsor: Representative John McCoy

Procedures are created to ensure that a parent’s military deployment will not, by itself, be considered a substantial change in circumstances justifying a permanent modification of the parties’ parenting plan. Any temporary custody order the court enters for the child during the military parent’s absence must end no later than 10 days after the returning parent gives notice to the temporary custodian. The court may, at the request of the military parent, delegate that parent’s time to a family member or another person, other than a parent, with a close and substantial relationship to the child. The delegation does not create separate rights to residential time or visitation for the person to whom time is delegated.

ESHB 1794 — Calculating child support

Prime Sponsor: Representative Jim Moeller

ESHB 1794 changes the economic table in the child-support schedule. The table starts at a combined monthly net income of $1,000, and the presumptive minimum amount of basic support is $50. The table is expanded to $12,000 of combined monthly net income and made entirely presumptive. In addition, ordinary healthcare costs are no longer considered part of the basic support obligation amount in the economic table. Instead, all healthcare costs must be shared by the parents in the same proportion as the basic support obligation. The support obligation may not reduce a parent’s income below 125 percent of the federal poverty guideline. The legislation increases the amount parents may deduct from gross monthly income for retirement contributions and changes how income from overtime and second jobs are considered and how a court must impute income to a parent.

SHB 1845 — Medical support obligations

Prime Sponsor: Representative Jay Rodne

The Department of Social and Health Services (DSHS) requested this legislation to bring the state into compliance with federal law that requires states to address health insurance for children in child-support orders. Courts must order both parents to provide medical support for any child named in the child-support order by providing health-insurance coverage or contributing cash medical support. Cash medical support consists of a parent’s monthly payment toward the premium paid for coverage by either the other parent or the state. In addition, both parents are responsible for paying their proportionate share of any uninsured medical expenses. When cash medical support is collected and the child is covered through Medicaid, the DSHS may retain the funds as reimbursement or pass the funds through to the parent to be used for medical costs.

SSB 5166 — Failure to pay child support

Prime Sponsor: Senator Debbie Regala

The statute governing procedures for license suspensions for failure to pay child support is restructured for clarity, and new provisions are added to account for a parent’s good-faith effort to comply with an order. An administrative law judge may find the parent has made a good-faith effort to pay, even if the parent is not technically in compliance with the support order, and may formulate a payment schedule for the parent. The payments in a payment schedule may be for less than current support for a reasonable time and need not include a payment towards the parent’s arrears.

SSB 5285 — Guardians ad litem

Prime Sponsor: Senator Debbie Regala

Changes are made to the guardian ad litem (GAL) statutes for dependency and family law proceedings. The court in family law and dependency cases must attempt to match a child who has special needs to a GAL who has specific training or education related to the child’s needs. Volunteer and compensated GALs must provide additional information in their background information record and, upon appointment, provide the background information to the court and the parties. The legislation also requires GALS to report child abuse or neglect under the mandatory reporting of child abuse and neglect statute.

E2SSB 5688 — Expanding the rights and responsibilities of state-registered domestic partners

Prime Sponsor: Senator Ed Murray

For all purposes under state law, state-registered domestic partners must be treated the same as married persons. Agencies must amend their rules to reflect the intent of the Legislature. Numerous chapters of the RCW are amended to include language stating that the terms spouse, marriage, marital, husband, wife, widow, widower, next of kin, and family are interpreted as applying equally to state-registered domestic partnerships as well as to marital relationships and married persons, and references to dissolution of marriage apply equally to state-registered domestic partnerships that have been terminated, dissolved, or invalidated, to the extent that such interpretation does not conflict with federal law.

LANDLORD-TENANT

SHB 1856 — Providing protections for tenants who are victims

Prime Sponsor: Representative Lynn Kessler

This legislation permits a tenant or household member who is a victim of sexual assault, stalking, or unlawful harassment by a landlord to terminate a rental or lease agreement without any further obligation under the agreement if certain conditions are met. A tenant or household member who is a victim of sexual assault, stalking, or unlawful harassment by a landlord may also change or add locks to his or her dwelling unit at the tenant’s expense. Landlord is defined to include a landlord’s employees.

PROBATE, TRUSTS, ESTATES

SHB 1103 — Vulnerable adults’ estates

Prime Sponsor: Representative Jim Moeller

SHB 1103 prevents an abuser from inheriting property or receiving any benefit from the estate of a vulnerable adult who was the victim of financial exploitation by the abuser. An abuser is a person who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult. In most cases, an abuser is treated the same as a slayer with respect to the distribution of the decedent’s estate.

REAL PROPERTY

HB 1826 — Surplus proceeds of mortgage-foreclosure sales

Prime Sponsor: Representative Jay Rodne

Surplus proceeds of a mortgage-foreclosure sale that remain after the mortgage obligation has been paid must be applied to all other interests in, or liens or claims against, the property in the order of priority that the interest, lien, or claim attached to the property. Any remaining surplus must be paid to the mortgage debtor.

ESB 5810 — Deeds of trust foreclosures

Prime Sponsor: Senator Claudia Kauffman

ESB 5810 changes the procedures governing foreclosures of deeds of trust securing residential real property. These changes affect beneficiaries, trustees, purchasers, and tenants of property subject to a trustee sale. A notice of default may not be issued to the borrower until 30 days after the beneficiary contacts, or exercises due diligence to contact, the borrower by phone and by mail to explore options for the borrower to avoid foreclosure. The contact requirement does not apply to certain deeds of trust entered into between specified dates, and does not apply to commercial loans or when the beneficiary is a homeowners’ or condominium association. The contact requirement expires on December 31, 2012. Tenants of foreclosed property are provided more notice and must be given be given a 60-day notice to vacate in certain circumstances. The failure of a borrower or grantor to enjoin a foreclosure sale does not constitute a waiver of certain claims for damages if brought within a certain time.

CRIMINAL LAW

SHB 1036 — Washington Code of Military Justice

Prime Sponsor: Representative Troy Kelley

Various changes are made to the Washington Code of Military Justice (WCMJ), which governs the organization, administration, and duties of the Washington State Guard and the Washington National Guard. All guard members who commit military offenses, whether or not the member is on duty status, are now subject to the WCMJ. Drug-related offenses and assault of one guard member against another member are added as military offenses (except assault in the first degree, which remains under the jurisdiction of civilian courts). The legislation also changes procedures for the different courts-martial and the types of punishment each may impose, and makes a variety of changes regarding pre-trial and post-trial criminal procedures.

HB 1498 — Firearms possession by persons who have been involuntarily committed

Prime Sponsor: Representative Ross Hunter

The crime of unlawful possession of a firearm in the second degree is amended to include persons who have been involuntarily committed for mental-health treatment, either as an adult or juvenile, under the 14-day commitment procedures. Courts are required to send a record of a person involuntarily committed for mental-health treatment to the federal National Instant Criminal Background Check System. The legislation also revises the standards and processes that apply to the restoration of firearm rights for a person who was involuntarily committed for mental-health treatment and imposes new notice requirements regarding loss of firearm rights in involuntary commitment proceedings.

SSB 5380 — Statutes of limitation for certain crimes

Prime Sponsor: Senator Bob McCaslin

A felony violation of the laws pertaining to the crimes of money laundering and identity theft may not be prosecuted more than six years after their commission or their discovery, whichever occurs later. The same statute of limitation applies to the crimes of theft in the first or second degree when accomplished by color or aid of deception.

SB 5832 — Statutes of limitation for certain sex offenses

Prime Sponsor: Senator Jeanne Kohl-Welles

Rape in the first and second degree may be prosecuted up to the victim’s 28th birthday if the victim is under 14 years of age at the time of the rape and the rape is reported to a law-enforcement agency within one year of its commission. Rape of a child in the first, second, and third degree; child molestation in the first, second, and third degree; and incest may be prosecuted up to the victim’s 28th birthday.

SB 5952 — Definition of sexual orientation for malicious-harassment prosecution

Prime Sponsor: Senator Joe McDermott

The definition of “sexual orientation” in the malicious-harassment statute is changed to mirror the definition included in the Law Against Discrimination (chapter 49.60 RCW). As a result, the definition of “sexual orientation” is expanded to include “gender expression or identity,” which means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.

SB 6167 — Concerning crimes against property

Prime Sponsor: Senator Adam Kline

The monetary thresholds are increased for the property crimes of theft, possession of stolen property, and malicious mischief as follows: first degree applies if the property is valued at greater than $5,000; second degree if the property is valued over $750 but under $5,000; and third degree applies if the property is valued at up to $750. The legislation also increases the dollar threshold values and some fines related to the property crimes of unlawful issuance of checks or drafts; theft of rental, leased, or loaned property; and organized retail theft. An organized-crime task force is created to monitor the effects of raising these monetary threshold amounts, and the Sentencing Guidelines Commission is directed to review the monetary threshold amounts to determine whether such amounts should be modified.

OTHER CIVIL LAW

SHB 1022 — Modifying statutory cost provisions

Prime Sponsor: Representative Brendan Williams

In an action for the recovery of money only, a plaintiff is the prevailing party and entitled to costs if the defendant offers and the plaintiff accepts full or partial payment of the amount sued for, and the plaintiff had given the defendant prior written notice that the defendant could still be liable for costs, regardless of full or partial payment.
 
SHB 1119 — Uniform Prudent Management of Institutional Funds Act

Prime Sponsor: Representative Jamie Pedersen

The Uniform Prudent Management of Institutional Funds Act (UPMIFA) replaces the current Uniform Management of Institutional Funds Act. UPMIFA updates the standards that apply to managing, investing, and spending funds of charitable institutions. The UPMIFA retains a prudence standard for the management, investment, and spending of institutional funds, but provides more specific standards for evaluating management and investment decisions and decisions regarding the expenditure or accumulation of endowment funds. The act also modifies the circumstances under which a restriction in a gift instrument may be modified or released.

ESHB 1138 — Concerning access to restrooms in retail stores

Prime Sponsor: Representative Marko Liias

Retail establishments over a certain size are required to allow customers to use an employee-only restroom if certain conditions are met. The conditions differ for customers who can prove they have an “eligible medical condition,” such as Crohn’s disease or irritable bowel syndrome, and other customers. A retail establishment is not required to make any physical changes to the restroom and may require that an employee accompany the customer to the restroom. Retail establishments face civil infractions for violating the law. The bill provides retail establishments with limited immunity from civil liability for any act or omission where a customer has been permitted to use a restroom that is ordinarily reserved for employees.

SHB 1261 — Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

Prime Sponsor: Representative Roger Goodman

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (Act) establishes procedures for addressing interstate jurisdictional, transfer, and enforcement issues relating to adult guardianship and protective proceedings. The Act provides standards for determining the state court with primary jurisdiction over guardianship and protective proceedings. In addition to jurisdictional provisions, the Act establishes procedures for communication and cooperation between state courts concerning guardianship and protective proceedings, methods for transferring jurisdiction over guardianship and protective proceedings between states, and rules for the recognition and enforcement of out-of-state guardianship or protection orders.

HB 1426 — Regarding the use of certified mail

Prime Sponsor: Representative Sam Hunt

Whenever a statute allows or requires the use of certified mail with a return receipt requested, an electronic return-receipt delivery confirmation provided by the U.S. Postal Service may be used.

ESHB 1553 — Damages claims against state and local government

Prime Sponsor: Representative Dean Takko

Changes are made to how tort claims against the state and local governments must be presented, who may sign the claim, and when a claim is considered presented in order to satisfy the procedural requirements of the statute. The amount of damages stated on the claim form is not admissible at trial. The procedures established under the medical malpractice statutes apply to the claims based on injuries from health care. The claim filing statutes are to be liberally construed with respect to the procedural requirements of the statute and substantial compliance will be deemed satisfactory.

SB 5153 — Uniform Foreign-Country Money Judgments Recognition Act

Prime Sponsor: Senator Adam Kline

The Uniform Foreign-Country Money Judgments Recognition Act (UFCMJ) updates the current Uniform Foreign Money-Judgment Recognition Act. The act clarifies when the UFCMJ applies and sets forth which party has the burden of establishing whether or not the act applies. The grounds for not recognizing a judgment are modified and a time period in which to commence an action to recognize a foreign money judgment is established.

SSB 5531 —  Modifying provisions relating to Consumer Protection Act violations

Prime Sponsor: Senator Debbie Regala

In a lawsuit for a Consumer Protection Act (CPA) violation, the district and superior courts have the discretion to award up to $25,000 in treble damages. In a private action claiming a CPA violation, a claimant may establish that the act or practice is injurious to the public because it violates a statute that incorporates the CPA; violates a statute that contains a specific legislative declaration of public-interest impact; or has injured or will injure other persons. The changes made to the CPA apply to all causes of action that accrue on or after the effective date of the act (July 26, 2009).

ESSB 5651 — Concerning requirements for dog-breeding practices

Prime Sponsor: Senator Jeanne Kohl-Welles

A person is prohibited from having more than 50 unaltered dogs that are over six months old at any time. Regulations are established for persons who keep more than 10 unaltered dogs over six months old in an enclosure most of the day. The regulations mainly address housing, exercise, sanitation, and breeding standards. Only dogs between the ages of 12 months and eight years may be used for breeding, and a violation of this restriction is a gross misdemeanor. Retail pet stores, certain facilities, organizations, and other entities are exempted.

SSB 5732 — Relicensing diversion programs for driving with license suspended in the third degree

Prime Sponsor: Senator Adam Kline

The superior courts and courts of limited jurisdiction are authorized to participate or provide relicensing diversion programs to persons who commit the offense driving while license suspended in the third degree (DWLA 3) due to failure to respond to a notice of traffic infraction, failure to appear at a requested hearing, violation of a promise to appear in court, or failure to comply with the terms of a notice of traffic infraction or citation. In jurisdictions that do not have a relicensing diversion program, a person who commits DWLS 3 due to failure to appear at a hearing or failure to respond or pay a traffic infraction will be given an abstract of his or her driving record by the court or the prosecuting attorney, a list of the person’s unpaid traffic offense-related fines, and contact information for each jurisdiction or collection agency to which the money is owed. Subject to available funds, counties and cities must provide information regarding their relicensing diversion programs to the Administrative Office of the Courts for analysis and development of a best-practices model.

SSB 5931 — Mental-health practitioner privilege

Prime Sponsor: Senator Ed Murray

Licensed mental-health counselors, independent clinical social workers, and marriage and family therapists may not disclose or be compelled to testify about any information acquired from persons consulting the individual in a professional capacity when the information was necessary for the individual to provide treatment. Certain exceptions to the privilege are provided.

ESSB 5967 — Prohibiting discrimination on the basis of sex in public community athletics programs

Prime Sponsor: Senator Jeanne Kohl-Welles

Cities, towns, counties, and park districts are prohibited from discriminating against any person on the basis of sex in a community athletics program. Each entity operating or issuing permission to operate such a program must adopt and publish a nondiscrimination policy by January 1, 2010. School districts operating community athletics programs must adhere to these requirements, but may use and modify existing school policies to the extent possible. School districts are not required to monitor compliance, investigate complaints, or enforce school district policies as to third parties using school facilities. 

Senator Adam Kline has served for 12 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 Jamie Pedersen has represented the 43rd Legislative District (central Seattle) since 2006 and became the chair of the House Judiciary Committee this session. Since 1995, he has practiced corporate law and worked on civil rights issues at K&L Gates LLP in Seattle. Senator Kline and Representative Pedersen would like to thank House and Senate Judiciary committee staff for their assistance with this article.