2009 Legislation

2009 Legislation

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TVW video of Attorney General Rob McKenna's press conference unveiling his 2009 legislative priorities.

SB 5209/HB 1221: Civil Commitment Victims' Counseling (pdf )

In order to properly protect Washington residents from sexually violent predators who have committed qualifying crimes in other states, the Attorney General’s Office Sexually Violent Predator Unit must notify, interview and depose victims — and in some cases victims from other states. These victims may be called to testify in civil commitment trials.

The specter of reliving the emotional trauma associated with being victimized by a sexually violent predator may dissuade some victims from cooperating with prosecutors in civil commitment trials. Current law, which indicates that only in-state victims may be compensated for trial-related counseling, is out of step with the state’s desire to bring witnesses forward and effectively prosecute local offenders — no matter where those offenders originally committed their crimes.

We propose updates to the statute regarding costs of counseling to victims when the state initiates proceedings under RCW 71.09 :

• A victim of a person against whom the state initiates proceedings under RCW 71.09 may receive reimbursement for the cost of counseling related to being notified, interviewed, deposed, or testifying in connection with the proceedings.
• For the purpose of this statute a non-resident victim of a crime occurring in another state may receive reimbursement for the cost of counseling related to being notified, interviewed, deposed, or testifying in connection with the proceedings.
• Benefits under this subsection shall be limited to compensation for costs incurred on or after the date the victim is notified of the proceedings under RCW 71.09 .
• An application for benefits under this subsection must be received by the department within two years after the date the victim's right accrued unless the director determines that good cause exists to expand the time to receive the application. The director shall determine "good cause" on a case-by-case basis and may extend the period of time in which an application can be received for up to five years after the date the right of the victim accrued.

SB 5718: Clarifying the Sexually Violent Predator Statute (pdf )

In May 2008, the state Supreme Court reversed the civil commitment of an offender who committed his two sexually violent offenses (attempted sexual abuse in the first degree and kidnapping) in Oregon but was serving his most recent sentence for a sex offense (burglary and indecent exposure) committed in Washington.

The court ruled that where an individual has not been convicted of a sexually violent offense in Washington, the state does not have jurisdiction to file a petition in Thurston County. In dicta, the court suggested that the state could re-file the petition in a county where the individual had been convicted of another crime. The AGO’s SVP unit has refilled all of the affected cases. However the jurisdictional issue remains an open question. This alerted the office to a needed change in the law to address the open question of where the civil commitments of out-of-state offenders must be filed.

The Attorney General’s Office requests modifications to the state’s SVP law to:

• Clarify where civil commitment proceedings may be filed, especially in cases where the sexually violent offense occurred outside of Washington.
• Make it easier for the AGO to receive court records;
• Prevent the AGO from being charged court fees in excess of those charged to county prosecutors;
• Address evidence admissibility; and
• Make additional changes to the civil commitment statute.

SB 5208/HB 1220: Domestic Violence (pdf )

Link: The AGO's DV Legislation Page

Twenty-five years after the passage of the Domestic Violence Protection Act, our laws do not treat domestic violence with the seriousness it demands. Weakness in current law results in mild sentences for repeat offenders. Extra sentencing consideration is allowed for serial drug offenders, car thieves and other chronic criminals, but not for domestic abusers. This leaves too many victims unprotected.

Today the label of “domestic violence” means nothing when it comes to punishments, as the designation alone does not increase the sanction imposed.

The Attorney General’s Office requested legislation to amend the appropriate RCWs and create a new section. The changes would:

• Score prior misdemeanor domestic violence history when sentencing felony domestic violence convictions and create a new list of enumerated serious domestic violence misdemeanor offenses.
• Multiplying, or counting more heavily, a certain class of prior domestic violence felony convictions by adding language to RCW 9.94A.525 (offender score calculation) that would give two points to the certain domestic violence crimes, including: Felony Violation No Contact Order/Protection Order (assault), Felony Harassment Domestic Violence, Felony Stalking Domestic Violence, Burglary 1 Domestic Violence, and Kidnapping 1 and 2 Domestic Violence.
• Amend 9.94A.030 (Sentencing Reform Act definitions) to add "domestic violence," defined as a criminal offense committed between a defendant and a victim having a relationship as defined in RCW 10.99.020 or 26.50.010.
• Make the designation of “Domestic Violence” mean something by requiring that it be plead and proven as an element of a particular offense. The benefit of pleading and proving domestic violence is significant as history at the felony level would be given new meaning and repeat offenders would receive tougher sentences

SB 5639/HB 1788: Vulnerable Adults (pdf )

The Washington State Department of Social and Health Services receives reports about possible abuse, abandonment, neglect, self-neglect or financial exploitation of vulnerable adults from “mandated reporters,” professionals who are legally required to report their concerns and from family members and other concerned citizens.

During 2007, DSHS’s Adult Protective Services (APS) received 13,551 reports of possible abuse, abandonment, neglect, self-neglect and financial exploitation. DSHS’s Residential Care Services (RCS) received more than 29,000 reports, which included allegations of possible abuse, abandonment, neglect or financial exploitation of vulnerable adults as well as concerns about the quality of life or quality of care being provided in licensed and certified long-term care settings.

The proposed legislation includes a number of measures designed to increase penalties imposed on individuals who commit crimes against vulnerable

adults, strengthen laws involving vulnerable adults and increase the ability of DSHS and law enforcement to investigate and share information about investigations with each other and the public.

Youth Internet Safety Task Force (pdf)

In August 2007, AG McKenna convened the Youth Internet Safety Task Force to take advantage of Washington’s unique position as a technology leader and identify educational, collaborative and law enforcement strategies to make the Internet safer for the people of Washington and their families. The committee is comprised of representatives from across Washington’s education, law enforcement and technology communities who have formed three working groups to address Internet safety.

Based on the recommendations of the law enforcement group, the Attorney General’s Office requested two bills to address this problem in 2008. One created a new crime of “Viewing Child Pornography.” The second allowed non-commissioned police personnel trained in forensic analysis to assist in child pornography investigations. Both bills were combined into one, but died on the floor of the Senate without a vote.

The Attorney General’s Office has been studying models used by other states to develop a highly effective new lab within the Washington State Patrol.

In 2009, the Attorney General’s Office requests two pieces of legislation:

SB 5184/HB1248: Studying the feasibility of developing a digital forensics lab to be housed at the State Patrol.

SB 5183/HB 1247:Creating a class C felony crime of viewing depictions of child pornography and protecting non-commissioned law enforcement personnel from prosecution when viewing depictions during investigations.

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HB 1132/SB 5221: Mortgage Law Fix (pdf )

The Attorney General’s Office worked with a bipartisan coalition in 2008 to pass legislation to help protect financially strapped homeowners from equity skimming and foreclosure rescue scams. The proposed bill was modeled after legislation enacted in Minnesota, Illinois, California and several other states.

The original bill draft, as written by the Attorney General’s Office, focused solely on purchase agreements that permit the original homeowner to lease the home then either buy it back later or receive a portion of proceeds of any resale.

Last-minute changes revised the definition of a “distressed home” and added the term “distressed homeowner consultant” to the bill. These changes are generating questions and concerns among real estate professionals. Neither the Attorney General’s Office nor the Washington Realtors had sufficient opportunity to comment on the revisions before the Legislature approved the law.

Realtors are concerned about the unintended liability that may be placed on a buyer (or buyer’s agent) of a home facing potential foreclosure. This perceived liability could chill the sales of the homes of distressed homeowners, possibly forcing them into foreclosure even when buyers are available. In other words, the bill as written might harm the very consumers it was intended to help.

Legislation, jointly requested by the AGO, the state Department of Licensing and the state Department of Financial Institutions, exempts real estate brokers from the law (RCW 61.34.020) and allows those simply offering to buy the home within 20 days of foreclosure to make the purchase.

HB 1215/SB 5235: Lemon Law (pdf )

Portions of Washington’s 21-year-old Lemon Law are stale. The statute needs updating to meet changing consumer expectations, substantially longer and more extensive warranties and other changes in the automotive industry. Technical fixes are also necessary for ease of implementation.

The Attorney General’s Office has requested legislation to update the Lemon Law. These changes would expand the standards for a consumer claim and potential remedies, provide greater clarity and consistency, enhance competition in contracting for arbitration services and reduce program costs by streamlining arbitration procedures.

Specifically, the proposed changes would:

• Replace the term “warranty period” with “eligibility period” and extend the eligibility period to three years or 36,000 miles.
• Revise the basis for Lemon claims by adding:
  • Two or more life-threatening defects (serious safety defects); or
  • Five or more nonconformities; or
  • 12 or more cumulative number of attempts to diagnose or repair for any number of nonconformities.
• Extend the manufacturer’s mandatory arbitration period to 42 months.
• Extend protections to some smaller motorcycles, while also limiting coverage for models costing more than $4,500 .
• Increase prospects for competition in bidding to provide arbitration services.
• Reduce cost by eliminating vendor work and transferring vendor work to the program.
• Provide consumers with full refunds of sales and use taxes including tax credits for trade-ins.
• Update penalties available to the court for an unjustified manufacturer appeal
• Require a manufacturer to title a reacquired vehicle with the Department of Licensing. The new title requirement will establish the appropriate title notations and a permanent record that will be observable by dealers, consumers, lenders, reporting companies and the national licensing database.
• Extend coverage to vehicles of armed forces personnel stationed in Washington without regard to the state where the purchase or lease occurred.

SB 5210/HB 1192: Safeguarding Consumers: Prizes, Promos and Privacy (pdf )

Internet businesses lure consumers with offers for “free” gifts and software trial services. Sometimes, their promotions are simply a means to collect consumers’ information that they then sell to marketers. Both traditional and online marketing campaigns may use negative-option sales, where a customer’s silence is interpreted by the seller as an acceptance of an offer. Washington’s existing laws do not specifically address these sorts of solicitations.

The Attorney General’s Office has requested legislation to update the state’s Prizes and Promotions Act (RCW 19.170) and Unsolicited Goods Act (RCW 19.56) to address Internet promotions and “free trials.” The proposed legislation would:

• Extend the disclosure requirements of written prize offers to analogous Internet “incentive programs,” such as requiring disclosure of the name and address of the promoter and advertiser, the verifiable retail value of the gift, odds of winning and any conditions.
• Clarify that sellers can’t charge for unsolicited goods or services. Sellers must obtain a customer’s express agreement to receive and pay for goods prior to seeking payment.
• Prohibit sellers from requiring a person to do any of the following as a condition of receiving a gift or free incentive:
  • Enter into an agreement to purchase a product or service.
  • Obtain the agreement of others to participate in the promotion.
  • Provide personal information – unless the recipient has the right to opt out of having the information shared with third parties. Personally identifiable information may include any of the following: last name in combination with first name or first initial; address; e-mail address or credit, debt or bank account number.
  • Participate in a trial service or subscription – unless the individual has consented to paying for any goods or services that require payment after the conclusion of the trial.
• Clarify that offers or incentive programs that require recipients to do any of the above can’t be labeled as a prize, gift, award, premium or any other term that implies the item is free.
• Require that a gift actually be awarded, or that cash or an item of equal value be given if the gift isn’t available.

SB 5340/HB 1249: Tobacco Internet Sales (pdf )

As the committee co-Chair for the National Association of Attorneys General, Attorney General McKenna has continued Washington’s leadership role in seeking to uphold the public health goals of the Tobacco Master Settlement Agreement.

The proliferation of online sales potentially poses several problems for Washington and its residents:

• Selling tobacco to minors is illegal in Washington, as in every state. Internet and mail-order sellers offer minors relatively easy access to tobacco. As noted above, our ability to verify the age of the recipients of tobacco products sold remotely now appears to be unenforceable.
• Internet sellers advertise that their customers can avoid state excise taxes. Purchases by Washington consumers of cigarettes over the Internet result in a loss of revenue to the state.
• Because they evade state taxes, Internet sellers place traditional licensed distributors and retailers at a competitive disadvantage.
• The availability of “cheap smokes” from online sellers undercuts the public health purpose of Washington’s tobacco excise tax. Higher costs of tobacco products have been shown to be effective in deterring non-smokers — particularly youth — from starting to smoke, and serve as an incentive for smokers to quit.
• Internet sellers offer for sale tobacco products manufactured by some companies that have not complied with Washington’s tobacco product manufacturer certification process, and, therefore, are not legal for sale in Washington. These sales violate RCW 70.157 and 70.158 (Washington’s “escrow” statute and “complementary” legislation).

The Attorney General’s Office requests legislation prohibiting the shipment of certain tobacco products purchased through the Internet or by mail order to anyone other than licensed wholesalers or retailers, correcting a loophole in Washington’s laws regarding age verification, taxation, public health goals and certification.

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SB 5130/HB 1181: Improving Public Access to Records by Reducing Abusive Prisoner Requests (pdf)

Over the past several years, incarcerated felons have been flooding state and local government with requests intended to overburden public records staff and harass law enforcement and other public employees. These requests have nothing to do with the conduct of government. In fact, they inhibit good, responsive government because time spent addressing inmate requests is time and money spent not addressing more important matters – including responding to legitimate requests from persons outside the inmate population.

• In 2007, the Department of Corrections (DOC) staff spent 12,494 hours responding to offender records requests – costing taxpayers more than $250,000 and six full-time employees.
• DOC made roughly 350,000 pages of records available to offenders. Offenders who requested the records paid for fewer than 30 percent of the pages made available.
• In the first half of 2008, DOC received approximately 4,200 offender requests, roughly double the number received during the same period in 2007. DOC staff spent approximately 8,760 hours responding to these requests, at a cost of more than $180,000.
• Due to the volume and scope of offender records requests, DOC has had to prioritize the requests, meaning the number of active requests, and the costs associated with responding to the active requests, will continue to grow into the future.

Balancing the need for legitimate access to public records against the ease with which inmates are abusing the Public Records Act, the Attorney General’s Office requests legislation to allow respondents to request an injunction if a records request by an inmate is proven to be intended to harass or cause harm to a person or vital government function. The legislation would also give courts authority to enjoin all or any part of the request and to retain jurisdiction for future requests by the same requestor.

SB 5339/HB 1017: Public Records Act Board (pdf)

PRA Board Legislative Packet

Working with State Auditor Brian Sonntag and Rep. Lynn Kessler, the AGO is requesting legislation to study the feasibility of creating a board that would:

• Deal with complaints alleging violations of the public records act and the public meetings act.
• Enforce the public records act and the open public meetings act.
• Offer alternative methods for dispute resolution under the public records act and the open public meetings act.

This bill has been pre-filed.

SB 5339/HB 1017: Open Public Meetings Act Training (pdf)

The Attorney General and State Auditor have jointly requested legislation:

• Requiring training and certification in the Open Public Meetings Act including curriculum based on model rules developed by the AG and SAO with input from the public and local government.
  • Current elected officials are required to complete the certification within 90 days of adoption of the model rules;
  • Newly elected officials are required to complete certification within 90 days of taking office after adoption of the model rules.
• Providing a safe harbor for actions taken in an illegal executive session:
  • If the government body self-discloses the violation at the first regular meeting after the illegal session;
  • If the body has taken no final action related to the illegal session prior to the self-disclosure; and
  • If there is no actual or anticipated litigation related to the illegal executive session.
• Allowing permissive recording of executive sessions by government entities, exempt from disclosure unless specifically authorized by a resolution of that entity.
• Requiring mandatory recording of executive sessions, triggered by a judicial finding of any “intentional” OPMA violation and ordered by a court. Recording is only required for two years from the court order and recordings are retained for two years, but exempt from disclosure under the PRA.

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