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September 20052005 Legislation of Interest to LawyersBy Sen. Adam Kline and Sen. Stephen Johnson • Washington State Senate Much of the legislation described in this article derives from the work accomplished by the Senate and House Judiciary committees. Included are significant enactments pertaining to changes in uniform laws, funding for civil legal services, indigent criminal defense and trial court improvement, the creation of certain rights and protections in civil proceedings involving service members called to active duty, and amendments to the Washington Condominium Act. Many other newly enacted measures will also be of interest to members of the Bar. It was critical for the Legislature to address the recent U.S. Supreme Court decision Blakely v. State of Washington and harmonize Washington state’s processes for imposing aggravated sentences with the Sixth Amendment right to trial by jury under the Constitution of the United States. Senate Bill 5477 resolved the conflict to the satisfaction of many; however, the Superior Court Judges’ Association is supportive of an alternative approach, and the allocation of discretion between judges and prosecutors may yet be fine tuned. 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 website, www.leg.wa.gov. Senate Judiciary Committee staff can be contacted at 360-786-7755 or PO Box 40466, Olympia, WA 98504-0466. As in past years, a full description of all bills that passed the 2005 Legislature can also be obtained by ordering the 2005 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. Uniform Acts SHB 1054: Enacting the revised Uniform Arbitration Act Prime sponsor: Representative Pat Lantz
• Consolidation of Proceedings. The RUAA applies to all agreements entered into and after the effective date of the Act, January 1, 2006. On or after July 1, 2006, the RUAA also applies to arbitration agreements entered into before the effective date of the Act. The RUAA does not apply to cases subject to mandatory arbitration and to labor disputes. ESSB 5173: Enacting the Uniform Mediation Act Prime sponsor: Senator Stephen Johnson The Uniform Mediation Act (UMA) allows disclosure to the public of mediation communications made during a session of a mediation that is open, or is required by law to be open. There are six exceptions to the privilege of confidentiality in the UMA. The UMA applies to mediations mandated by any statute, court, or administrative rule; mediations to which parties have been referred by a court, administrative agency, or arbitrator; and mediations conducted by a professional mediator. The UMA applies to dissolution of marriage and legal separation mediations, except that communications in postdecree mediations mandated by a parenting plan are admissible in subsequent proceedings for limited purposes. Regardless of any provision to the contrary in chapter 42.17 RCW, the Open Records Act, all work products or case files of dispute-resolution centers are confidential and privileged unless a court, or administrative tribunal, determines that the materials were submitted for the purpose of avoiding discovery of the material. The effective date is January 1, 2006. SSB 5052: Creating the Uniform Estate Tax Apportionment Act Prime sponsor: Senator Stephen Johnson If a decedent does not make a valid provision as to how estate taxes are to be apportioned, the statutory apportionment rules of the Uniform Estate Tax Apportionment Act (UETAA) apply. A decedent’s estate tax is apportioned among those interested in the estate, essentially on the basis of their shares in the net estate. All property and interests that are subject to the estate tax are addressed, including joint tenancy assets, retirement accounts, and life insurance. An interest in property that qualifies for a deduction bears a portion of the tax only if there is no other source from which to pay the tax. A reference is contained to the 2005 version of the Internal Revenue Code and it applies to the estate tax apportionment chapter only. A savings clause addresses any outstanding rights, liabilities, or obligations that may exist under the apportionment statute that is being repealed in the legislation. Civil Law HB 1125: Managing trusts and estates Prime sponsor: Representative John Serben A variety of changes are made to the state’s probate and trust law. The definition of “issue” for purposes of inheritance is clarified and the reference to “lawful” issue is removed. The anti-lapse statute is expressly made to cover situations in which a person named in a will dies after the testator but before the happening of some event upon which the named person’s right to receive property is contingent. The descendants of such a named person will receive the property absent a contrary provision in the will. Creditors are required to file claims in the county of the estate proceeding, rather than in the county of the decedent’s residence, if the two counties are different. A sole parent, as well as a surviving parent, is authorized to “nominate” a guardian for his or her minor child. A power of attorney may include authority for the attorney in fact to provide for the care of a minor child. The authority is effective only if the minor child has no other parent or legal representative who is available and authorized to make healthcare decisions for the child. The power of attorney may also include the nomination of a guardian for the child. The term “income beneficiaries” is removed, so that notice requirements apply to adult “distributees” of a trust, whether or not those distributees include income beneficiaries. If all parties with an interest in a trust agree to a change in a trustee, then notice need not be given. SHB 1747: Administering the state-funded civil representation of indigent persons Prime sponsor: Representative Alex Wood The Office of Civil Legal Aid (OCLA) is created as an independent agency of the judicial branch. Administration of state-funded civil legal services is transferred from the Department of Community, Trade, and Economic Development to the OCLA. The Supreme Court must appoint a director of the OCLA from a list of three names provided by the Access to Justice Board. The director will serve at the pleasure of the Supreme Court and will receive a salary to be determined by the new Civil Legal Aid Oversight Committee. The director must contract with legal aid providers; oversee the use of state funding; report to the Oversight Committee and the Access to Justice Board on the use of state funds; report on the status of access to the civil justice system for low-income people; and submit a biennial budget. An 11-member oversight committee is created to replace the four-member oversight committee. The 11-member oversight committee will supervise the activities of the OCLA; review the director’s performance; and it may make recommendations to the Supreme Court, the Access to Justice Board, and the Legislature regarding state-funded civil legal aid. SHB 1699: Regulating agreements for the purchase and sale of real estate Prime sponsor: Representative Pat Lantz
The requirements for guaranteed enforcement of earnest-money deposits are made identical to the requirements for all liquidated damages clauses. Courts must enforce an earnest-money forfeiture clause regardless of the seller’s actual damages if the agreement identifies the amount paid as an earnest-money deposit; the seller’s sole and exclusive remedy for a party’s failure to complete the purchase is recovery of the forfeited earnest-money deposit; and the amount of earnest money to be forfeited is no greater than five percent of the purchase price. These requirements apply equally to residential and commercial property transactions. Failure to meet the statutory requirements no longer renders the earnest-money forfeiture clause totally ineffective. Courts will instead evaluate a defective earnest-money deposit clause under the common law liquidated damages requirements. EHB 1848: Addressing construction-defect disputes involving multi-unit residential buildings Prime sponsor: Representative Larry Springer The Washington Condominium Act (WCA) is amended to provide for alternative dispute resolution mechanisms including arbitration, case schedule planning, mediation, and the use of neutral experts in resolving disputes over alleged breaches of condominium warranties. The building enclosures of all multi-unit residential buildings must be inspected during the course of construction to determine compliance with the enclosure design documents. A building department may not issue a certificate of occupancy for a multi-unit residential building until a building enclosure inspection report has been submitted. The design document and inspection requirements do not create a right of action or any liability against any architect, engineer, or inspector. However, the developer and any architect, engineer, or inspector on a project may contractually agree on the extent of possible liability to the developer. No condominium unit may be sold without the required enclosure design documents and inspection report. In the case of a conversion of a building to residential condominium units, special inspection provisions apply. Several alternative dispute resolution provisions apply to a lawsuit alleging breach of warranty under the WCA if the lawsuit is filed and served on or after August 1, 2005. At least 10 days after filing and service, the parties must confer on a case schedule to be proposed to the court. The proposed plan is to cover schedules for the mandatory mediation process, possible selection of arbitrators, joinder of parties, investigations of the case, disclosure of repair plans and estimated costs, and each party’s settlement demand or response. Any party may demand arbitration and, within 20 days after the arbitrator’s decision is filed, either party may demand a trial de novo on appeal. If the judgment of the court in a trial de novo is not more favorable to the appealing party than the arbitration award, the appealing party must pay the costs and fees, including reasonable attorney fees, of an adverse party. If the judgment is more than the arbitration award, the court may award those costs and fees to the appealing party unless the judgment is not more favorable than the most recent of any offers of judgment made. If both the trial de novo provisions and the offer of judgment provisions would result in the award of costs and fees, the offer of judgment provisions control. Unless the parties agree otherwise, mediation must begin within seven months of filing and service. Mediation ends upon written notice of termination by any party. If, after the parties have met and conferred, issues still remain, any party may request the court or arbitrator to appoint a neutral expert. A neutral expert is not liable to the parties regarding his duties, and no evidentiary presumption is created regarding a neutral expert’s report. Different rules apply regarding payment of arbitrators, mediators, and neutral experts if a condominium was built pursuant to a building permit issued before or after August 1, 2005. Ultimate responsibility for the fees and costs of trial or arbitration may be affected by the acceptance or rejection of offers of judgment. If a condominium association has brought a claim, no award of costs and fees against the association may exceed five percent of the assessed value of the condominium as a whole. If an individual unit owner has brought a claim, no such award against the owner may exceed five percent of the unit’s assessed value. If an association is a party to the dispute, then the association has sole responsibility for accepting or rejecting offers with respect to common elements of the condominium. SHB 2173: Adopting the Service Members’ Civil Relief Act Prime sponsor: Representative John Serben In a civil action where a defendant does not make an appearance, the plaintiff must file an affidavit stating whether or not the defendant is in military service or is a dependent of a service member in military service. A person who makes or uses such an affidavit knowing that it is false is guilty of a class-C felony. The court may not enter a judgment against an absent defendant who is a service member in military service, or who is a dependent of a service member in military service, until after the court appoints an attorney to represent the defendant. In a civil action where a service member or dependent is a defendant and does not make an appearance, the court must grant a stay of proceedings until 180 days after termination of, or release from, military service if the court finds there may be a defense to the action that cannot be raised without the defendant’s presence, or counsel has been unable to contact the defendant to determine whether there is a valid defense. A court may enter a temporary order in a domestic-relations case despite the absence of the service member. If a default judgment is entered against a service member or dependent during military service or within 180 days after military service ends, the service member or dependent is entitled to have the judgment reopened if the service member or dependent was materially affected in making a defense because of the military service and has a meritorious or legal defense to the action. Any default judgment that is vacated or set aside does not impair a right or title acquired by a bona fide purchaser for value. A service member or dependent may apply for a stay of a civil proceeding in which the member or dependent is a defendant during military service or within 180 days after the termination of military service, and the court must stay the proceedings until 180 days after termination of military service if the application contains specified information. A court may reduce or waive a penalty that accrues under a contract for nonperformance by a service member or dependent if the service member was in military service when the penalty was incurred and the military service materially affected the ability to perform the contract obligation. The period of a service member’s military service is excluded from the calculation of any statute of limitation periods, except for federal internal revenue laws. Any relief granted under the Act may also be granted to any other person who may be primarily or secondarily liable upon the obligation at issue, such as a surety, guarantor, or endorser. Family Law — Domestic Violence SHB 1171: Limiting the court’s discretion concerning denial of dissolution decrees Prime sponsor: Representative Mary Lou Dickerson A court is prohibited from using a party’s pregnancy as the sole basis for denying or delaying entry of a decree of dissolution of marriage. This prohibition does not affect further proceedings under the Uniform Parentage Act. ESHB 1314: Creating the domestic violence prevention account Prime sponsor: Representative Mary Lou Dickerson Superior court clerks must collect an additional $30 from any party filing a petition for dissolution, legal separation, or declaration concerning the validity of marriage. The clerk must each month transmit $24 out of the $30 fee for deposit in the Domestic Violence Prevention Account, newly created in the state treasury. The remaining $6 is retained by the county collecting the fee for the purpose of funding community-based services for victims of domestic violence within the county. In addition, the court may retain five percent of the $6 (30 cents) for administrative purposes. Revenue transferred into the Domestic Violence Prevention Account must be used to fund nonshelter community-based services for domestic-violence victims. The Department of Social and Health Services administers the funds in the Domestic Violence Prevention Account and may establish minimum standards for preventive, nonshelter community-based services receiving the funds. Preventive, nonshelter community-based services include services for victims of domestic violence from communities that have been traditionally underserved or unserved and services for children who have witnessed domestic violence. SB 5053: Authorizing service by publication in actions to establish or modify parenting plans, for legal separation or invalidity of marriage, and for nonparental custody Prime sponsor: Senator Adam Kline Service by publication is specifically authorized for the following types of cases: (1) actions for the establishment of a parenting plan or residential schedule; (2) dissolution of marriage; (3) legal separation; (4) declaration of invalidity; or (5) nonparental custody when the child is in the physical custody of the petitioner. Criminal Law SHB 1236: Changing duties for aiding injured persons Prime sponsor: Representative Al O’Brien A new misdemeanor crime of “failing to summon assistance” is created. A person commits failure to summon assistance when: • the person is present when the crime is committed against a victim; 2SHB 1542: Providing indigent defense services Prime sponsor: Representative Pat Lantz A mechanism and distribution formula are established for providing state funding of local indigent defense services. The Office of Public Defense (OPD) is to disburse appropriated funds to eligible cities and counties for public-defense services. Local jurisdictions may apply for funds if they meet certain requirements, including requiring public defenders to get annual training approved by the OPD. Applicants must also report financial and caseload information on public-defense services for the previous year. If a local jurisdiction receives funds from the OPD, it must document that it is meeting the standards of the Bar Association or making “appreciable demonstrable improvements” in services, including: • the service delivery standards which cities and counties are required to adopt, and for which the Bar Association standards should serve as a guideline; The OPD may terminate funding if it determines that a local jurisdiction receiving funds has not substantially complied with these requirements. A determination to terminate funding is appealable to the OPD Advisory Committee, whose decision is final. HB 1837: Providing for child witnesses Prime sponsor: Representative Jay Rodne The statute authorizing testimony by a child victim to be given via closed-circuit television outside of the presence of the defendant is expanded to include testimony by a child witness who is not the victim of the crime when the testimony describes: • sexual or physical abuse of another child by another person; or E2SHB 2015: Changing provisions relating to judicially supervised substance abuse treatment. Prime sponsor: Representative Ruth Kagi In addition to the original prison-based Drug Offender Sentencing Alternative (DOSA), a residential chemical dependency treatment-based alternative is created. Courts have the option to sentence a nonviolent offender with a substance abuse addiction to either the current prison-based DOSA or the new residential chemical dependency treatment-based alternative. The residential chemical dependency treatment-based alternative is available to an offender only if the midpoint of his or her standard sentence range is 24 months or less. If a residential chemical dependency treatment-based alternative DOSA sentence is ordered, the court must impose a term of community custody equal to one-half of the midpoint of the standard sentence or two years, whichever is greater. The community custody sentence is conditioned upon the offender entering and remaining in a certified residential treatment program for a period of three to six months as set by the court. If the court imposes a residential community custody sentence, the Department of Corrections (DOC) must, within available resources, make chemical dependency assessments and treatment available to the offender. The court must schedule a treatment termination hearing three months prior to the offender’s anticipated completion date of community custody. At the hearing, the court may: (1) authorize the DOC to terminate the offender’s community custody on the scheduled expiration date; (2) modify the conditions of the community custody and continue the hearing to a date before the expiration date of the offender’s community custody; or (3) impose a term of incarceration equal to one-half of the midpoint of the standard sentence range, followed by a term of community custody. If the court imposes a term of incarceration, the DOC must, within available resources, make chemical dependency assessment and treatment services available to the offender during the terms of total confinement and community custody. ESHB 2126: Providing accommodations to dependent persons who are victims and witnesses Prime sponsor: Representative Pat Lantz A list of rights is created for dependent persons who are victims or witnesses of crimes. The rights are the same as those listed for victims and witnesses and child victims and witnesses, except there is no provision regarding the victim’s identifying information. The rights are not to be construed as creating substantive rights and duties, and each case is subject to the discretion of law enforcement, the prosecutor, or the judge. Prior to the commencement of a trial, the court may allow the prosecutor or defense to take a videotape deposition of the dependent person if it is likely that the dependent person will be unavailable to testify at trial. The court’s finding of likely unavailability must be based upon, at a minimum, recommendations from the dependent person’s doctor or anybody else with direct contact with the dependent person and based on the dependent person’s specific behavior. The party seeking the deposition must provide reasonable written notice to the other party, who shall have the opportunity to be present and cross-examine the dependent person. The deposition may be used at trial if the dependent person is unavailable and the other party had notice of, and an opportunity to be present at, the deposition. Failure to provide notice of the rights or to assure these rights to the dependent person shall not result in civil liability if the failure was in good faith. SB 5477: Revising sentencing procedures for exceptional sentences Prime sponsor: Senator Adam Kline Either party or the court may initiate proceedings for a mitigated sentence. The court determines, by a preponderance of the evidence, whether substantial and compelling reasons exist to impose a sentence below the standard sentence range. The list of aggravating factors used to justify an upward departure from the standard sentence range is made exclusive. The aggravating factors list is expanded to include current judicially recognized factors. Four aggravating factors, all based on questions of law, may be used to impose a sentence above the standard range without findings of fact by a jury. The remaining 25 aggravating factors pose questions of fact that must be submitted to a jury. Prior to trial or entry of a guilty plea, the state may give notice that it is seeking a sentence above the standard sentence range. A judge may no longer independently seek a sentence above the standard sentence range. The court then makes an initial determination regarding whether the evidence allegedly supporting a sentence above the standard sentence range can be admitted during the trial for the underlying offense or whether: (1) the evidence is not part of the evidence required to prove the crime; (2) the evidence is not otherwise admissible; and (3) admission of the evidence would be unfairly prejudicial at trial. If the evidence is not admitted at the trial for the underlying offense and the defendant is found guilty, a separate sentencing departure hearing is conducted using the same jury. The state has the burden of proving, beyond a reasonable doubt, the existence of one or more aggravating factors. The jury verdict must be unanimous. To impose a sentence above the standard sentence range, the court must then find that the factors constitute substantial and compelling reasons justifying the exceptional sentence and must set forth those reasons in written findings and conclusions of law. The Sentencing Guidelines Commission is directed to study and draft proposed legislation addressing judicial discretion issues under the sentencing reform act. The study and proposed legislation must be submitted to the Legislature by December 1, 2005. Courts E2SSB 5454: Revising trial court funding provisions Prime sponsor: Senator James Hargrove The Legislature recognizes that the state is obligated to provide adequate representation to criminal indigent defendants and to parents in dependency and termination cases. The Legislature therefore creates a dedicated revenue source to meet the state’s obligations in the areas of indigent criminal defense, indigent civil legal services, and trial court improvement. District court civil filing fees are increased from $31 to $43, and superior court civil filing fees are increased from $110 to $200. Counterclaims, cross-claims, and third-party claims will be assessed the same filing fee as the fee for initiating the action. A new $43 fee is assessed against a criminal defendant upon conviction or plea of guilty in a court of limited jurisdiction. The legislation enumerates other increased fees as well. Funding for county law libraries is increased. The increase in fees generated by this Act will be deposited into the equal justice subaccount. The funds in the subaccount must be appropriated only for the following purposes, and for the fiscal biennium ending June 30, 2007, are appropriated as follows: • $2.3 million for criminal indigent defense assistance and enhancement at the trial court level, $1 million of which is provided solely for a criminal indigent defense pilot program; For the 2005-2007 fiscal biennium, the state must appropriate 25 percent of the revenues to the equal justice subaccount, less $1 million, to the administrator for the courts for the purpose of contributing to district and elected municipal court judges’ salaries. The administrator for the courts must develop a distribution formula for these funds which does not differentiate between district and elected municipal court judges. All cities, towns, and counties for which the state contributes to district or municipal court judges’ salaries are required to create trial court improvement accounts. HB 1769: Authorizing jury source lists to be divided by jury assignment area Prime sponsor: Representative Pat Sullivan In a county with more than one superior court facility and a separate case-assignment area for each facility, the jury source list may be divided into jury assignment areas. At the request of the majority of the judges of the superior court, the Administrative Office of the Courts may designate and adjust jury assignment area boundaries based on U.S. census data. Juvenile Justice EHB 1187: Eliminating mandatory minimum sentences for certain youthful offenders tried as adults Prime sponsor: Representative Mary Lou Dickerson The adult mandatory minimum sentences do not apply when a juvenile is sent to adult court after a decline hearing has been held in juvenile court and the court determines that adult court is the appropriate court for the juvenile. When a juvenile has been discretionarily declined, a judge may either sentence a juvenile to any sentence within the standard range for the offense or impose an exceptional sentence downward. The juvenile would also be eligible for the same opportunity for earned early release as any person sentenced for a standard range sentence. The mandatory minimum sentences will continue to apply to cases that are automatically transferred to adult court. The sentencing change applies only to offenses committed on or after the effective date of the act. Driving Under the Influence SSB 5644: Extending the stay on driver’s license suspensions pending entry of a deferred prosecution Prime sponsor: Senator Adam Kline When license suspension is required due to an implied consent violation, the Department of Licensing will stay the suspension of a person’s driver’s license if he or she notifies the department of the intent to seek a deferred prosecution. The duration of the stay is not longer than 150 days after the date charges are filed, or two years after the date of the arrest for driving under the influence of alcohol or any drug, whichever time period is shorter. |
